STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA L. ORAGUI, )

)

Petitioner, )

)

vs. ) Case No. 99-2479

)

DAYS INN, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on September 1, 1999, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Brenda L. Oragui, pro se

712 Kaley Street, 1-A Orlando, Florida 32805

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully discriminated against Petitioner by discharging Petitioner from her employment because of her age in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).

PRELIMINARY STATEMENT

On August 23, 1995, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the "Commission") alleging that Respondent unlawfully terminated Petitioner's employment on August 19, 1995. Within 180 days, the Commission did not make a determination regarding the charge of discrimination. On October 27, 1997, Petitioner withdrew her Charge of Discrimination and requested an administrative hearing. On June 2, 1999, the Commission referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing.

On July 7, 1999, the undersigned issued a Notice of Hearing scheduling the administrative hearing for September 1, 1999. At the hearing, Petitioner testified in her own behalf, presented the testimony of two witnesses, and submitted four exhibits for admission in evidence. Petitioner is in violation of the instructions given by the Administrative Law Judge at the hearing to forward the exhibits to the undersigned. Petitioner has custody of the exhibits and has not sent them to the undersigned.

Respondent did not appear and did not otherwise submit any evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the record of the hearing. The hearing was recorded, in part, by video and, in part, by court reporter. Neither party requested a transcript of the hearing. Neither party submitted a proposed recommended order ("PRO").

FINDINGS OF FACT

1. Petitioner is a member of a protected class. Petitioner was born on July 6, 1945, and was 40 years or older on August 19, 1995, when the alleged unlawful discrimination occurred.

2. Respondent engaged in an adverse employment action. On August 19, 1995, Respondent discharged Petitioner from her employment as an Executive Housekeeper.

3. Respondent engaged in the adverse employment because of Petitioner's age. Petitioner submitted direct evidence of age discrimination.

4. On August 19, 1995, Petitioner's supervisor telephoned Respondent at her home. The supervisor told Respondent she had been laid off from her job. When Petitioner asked why, the supervisor stated that two younger employees, ages 26 and 27, could get more done than Petitioner because they were younger.

5. Even if there were no direct evidence of age discrimination, Petitioner provided sufficient inferential evidence of age discrimination. When the supervisor telephoned Petitioner to inform her that she had been discharged, the supervisor stated that business was "slow" due to remodeling of the motel. However, there is sufficient inferential evidence to conclude that this explanation from the supervisor was a pretext for age discrimination.

6. The Days Inn Central location on West Colonial Drive includes approximately 40 rooms. As the Executive Housekeeper, Petitioner supervised two younger housekeepers. Respondent did

   not discharge any employee except Petitioner and did not retain any employees who were 40 or older.

7. Petitioner had been continuously employed by Respondent for more than 10 years. During that time, Petitioner was progressively promoted from housekeeper to executive housekeeper, had consistently received positive employment evaluations, and had consistently received progressive pay raises.

8. Petitioner received treatment disparate from that of other similarly situated individuals in a non-protected class. There is sufficient evidence of bias to infer a causal connection between her age and the disparate treatment. Respondent failed to submit any evidence to rebut the inference.

9. Soon after 1983, Petitioner began working for Respondent at the Days Inn on Lee Road as an assistant housekeeper. She started as an assistant housekeeper earning minimum wage. By 1986, Petitioner had been promoted to head housekeeper at the Midtown location and was earning $7.50 an hour for approximately

   50 hours a week. Thereafter, Petitioner was promoted to Executive Housekeeper at the Central location and paid an annual salary of $18,500.

10. Petitioner was unemployed from August 19, 1995, until July 1, 1996, or approximately 317 days. The per diem rate of compensation based on an annual salary of $18,500 is approximately $50.68. Total back pay for 317 days of unemployment at $50.68 per day is approximately $16,065.56.

11. Respondent re-hired Petitioner on July 2, 1996, as a housekeeper at the Lake Buena Vista location. Respondent paid

    Petitioner $6.50 an hour for an average of 5.5 hours a day, or approximately $35.75 a day. Respondent continued that rate of compensation until July 12, 1999, or approximately 375 days. The difference in per diem compensation before and after her discharge is approximately $14.93 for 375 days, or $5,598.75.

12. From July 12, 1999, to the date of hearing on September 1, 1999, approximately 50 days, Petitioner worked at

    the Days Inn on Sand Lake Road as a housekeeper. Respondent paid Petitioner $5.75 an hour for 7.5 hours a day seven days a week.

    The per diem rate of compensation was $43.13. The difference in per diem compensation before and after Petitioner's discharge is approximately $7.55 for 50 days, or $377.50.

13. The total back pay is $22,041.81 plus any sum due Petitioner from the date of the hearing to the date that Respondent pays Petitioner all back pay and reinstates Petitioner to her former level of compensation. The total back pay of

    $22,041.81 is comprised of $16,065.56 for the 317 days from August 19, 1995, through July 1, 1996; plus $5,598.75 for the 375

    days from July 2, 1996, through July 12, 1999; plus $377.50 for

    the 50 days from July 13, 1999, through September 1, 1999.

14. Section 760.11(9) provides that no liability for back pay may accrue from a date more than two years "prior" to the filing of a complaint with the Commission. However, Section 760.11(9) does not limit Respondent's liability for back pay after a complaint is filed with the Commission.

15. Respondent discharged Petitioner on August 19, 1995. Petitioner filed a complaint with the Commission on August 23, 1995.

16. The amount of back pay determined herein does not accrue from a date more than two years prior to the filing of the complaint with the Commission. The amount of back pay accrues from a date after the filing of the complaint with the Commission.

17. Section 760.11(7), in relevant part, authorizes the presiding Administrative Law Judge to recommend affirmative relief from the effects of an unlawful employment practice. Affirmative relief includes, but is not limited to back pay.

18. In addition to a loss of income, Petitioner's discharge from her employment resulted in the loss of her residence, the repossession of her automobile, and a loss of good credit. However, Petitioner failed to submit evidence sufficient to establish a monetary value for those losses.

    CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative hearing. Section 120.57(1).

20. Section 760.10(1), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age. Chapter 760, entitled the Florida Human Relations Act (the "Act"), adopts the legal principles and judicial precedent set forth under Title VII

    of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section 2000e et seq. (the "ADA").

21. The law affords no protection from discrimination unless Respondent engages in an adverse employment action. Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985). Respondent engaged in an adverse employment action when Respondent discharged Petitioner from her employment. The remaining issue is whether Respondent engaged in the adverse employment action because of Petitioner's age.

22. The initial burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy her burden of proof by a preponderance of the evidence. Section 120.57(1)(g).

23. Petitioner must establish a prima facie case of discrimination. Rosenbaum v. Southern Manatee Fire and Rescue District, 980 F.Supp 1469 (M.D. Fla. 1997); Andrade v. Morse Operations, Inc., 946 F.Supp 979, 984 (M.D. 1996). Petitioner must show by a preponderance of evidence that: she is a member of a protected class; she suffered an adverse employment action; she received disparate treatment from other similarly situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between her age and the disparate treatment. Id. Failure to establish the last prong of the conjunctive test is fatal to a claim of

    discrimination. Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996); Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

24. Petitioner made a prima facie showing that she is a member of a protected class and that she suffered an adverse employment action. Petitioner also made a prima facie showing that she received dissimilar treatment from individuals in a non- protected class; that there was bias against Petitioner; and that the evidence of bias was sufficient to infer a causal connection between Petitioner's age and the alleged disparate treatment.

25. Petitioner submitted direct evidence of age discrimination. Petitioner testified to the substance of a telephone conversation between Petitioner and her supervisor. The hearsay statements of the supervisor during the telephone conversation are admissible as admissions pursuant to Section 90.801(18)(a), (c), and (d). Petitioner's testimony concerning the substance of Respondent's admissions was credible and persuasive and was not rebutted by Respondent.

26. Even if the testimony of Petitioner were not competent and substantial evidence to support a finding of direct evidence of age discrimination, Petitioner provided sufficient inferential evidence of age discrimination. Cf. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas v. Green, 411 U.S. 792 (1973).

27. Petitioner showed that she was the oldest of three employees, that she had more job experience, that she had been progressively promoted, and that she had a successful employment

    history for more than 10 years. Despite Petitioner's superior employment history and job experience, Petitioner also showed that she was the only one of three employees who was discharged.

28. Once Petitioner satisfied her burden of establishing a prima facie case of discrimination, an inference arises that the adverse employment action was motivated by a discriminatory intent. Burdine, 450 U.S. at 254-255. The burden then shifts to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id. Respondent failed to articulate a legitimate, non-discriminatory reason for discharging Petitioner from her employment.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a final order finding that Respondent unlawfully discriminated against Petitioner on the basis of her age and requiring Respondent to remit back pay to Petitioner in the amount of $22,041.81 plus the amount of back pay that accrues from the date of the administrative hearing until the date that Respondent remits all back pay, together with interest, and reinstates Petitioner to the rate of compensation she was receiving on the date of her discharge.

DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1999.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Brenda L. Oragui, pro se 712 Kaley Street, 1-A Orlando, Florida 32805

Parvis Mousavi, Manager Days Inn, a/k/a Howard

Johnson Fairway, Inc. 4919 West Colonial Drive Orlando, Florida 32808

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-002479

Orders for Case No: 99-002479