STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS E. LOGSDON,

Petitioner,

vs.

THE SPORTS AUTHORITY,

Respondent.

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) Case No. 01-2371

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AMENDED RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 10, 2001, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Thomas E. Logsdon, pro se

3005 East Avery Street Pensacola, Florida 32503

For Respondent: Lillian Rosa

3383 North State Road 7

Fort Lauderdale, Florida 33319 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding are whether Petitioner was terminated from his employment with Respondent because of his religion.

PRELIMINARY STATEMENT

On March 15, 2000, Petitioner, Thomas E. Logsdon, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The Charge of Discrimination alleged that Respondent, The Sports Authority, had terminated Petitioner based on his religion.

On April 26, 2001, Petitioner advised FCHR that more than

180 days had elapsed since he filed his Charge of Discrimination, during which time FCHR had not completed its investigation or entered a Notice of Determination in his case. Petitioner further advised FCHR that he wished to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing in accordance with Section 760.11(4)(b)8., Florida Statutes. Petitioner's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and introduced one exhibit. Respondent presented the testimony of one witness and offered two exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order on October 9, 2001. Respondent filed a Proposed Recommended Order on November 13, 2001.

FINDINGS OF FACT

1. Petitioner is a devoutly religious man. The evidence did not show in which organized religion Petitioner has his

   membership. However, the evidence was clear that Petitioner belongs to a religion and that Petitioner's beliefs require him to pray and read the Bible every day and, if asked, to communicate any messages God gives Petitioner during his prayer to those to whom the messages are meant. Petitioner is sincere in his belief and religious practices.

2. Prior to July 1999, Petitioner worked at an Eckerd's drug store in Pensacola, Florida. Petitioner has a Ph.D. in education and over 30 years' experience in retail management. While at Eckerds, Mr. Fergerson, the store manager for Respondent, solicited Petitioner for a lower tier management position with Respondent's store location in Pensacola. Petitioner was interested in the job offer.

3. At some point, Mr. Fergerson and Petitioner met for a formal job interview. Mr. Fergerson told Respondent that the Respondent provided good opportunities to move into upper level management positions and that he would be promoted when an upper-management position became available. During the interview, Mr. Fergerson and Petitioner discussed Petitioner's religious beliefs and practices. Mr. Fergerson asked Petitioner if he had a word from the Lord for him. Petitioner prayed and was given a message for Mr. Fergerson regarding the sale of Mr. Fergerson's house in South Carolina. Petitioner told Mr. Fergerson what message God had sent regarding the house. Later,

   Petitioner learned that what Petitioner had told Mr. Fergerson was accurate. At the conclusion of the interview, Petitioner was hired by Respondent.

4. In July 1999, Petitioner began his employment with The Sports Authority as a lower tier manager responsible for price changes and fiscal control. Petitioner was paid $7.47 per hour and worked a 40-hour work week for $298.80 gross salary a week.

5. During his employment Petitioner received several compliments on the quality of the work he was doing. These compliments came from Mr. Fergerson; Rocky Smith, assistant store manager; and Kelley Touchstone, operations manager. Over lunch and on his own time at work, Petitioner prayed and read the Bible in his office. It became known to some other employees that Petitioner prayed at lunch and that, occasionally, God gave him messages regarding other people. Three employees, Mr. Fergerson, Christy Moore and Nadene Narley, asked Respondent to let them know if God gave him a message for them. Petitioner agreed that he would.

6. At some point, Ms. Touchstone's position as operations manager was opening. Petitioner believed he was in line to move into the operations manager's position. However, other than Petitioner's belief, the evidence did not show that Petitioner was being considered for that position.

7. At some point prior to August 6 or 8, 1999, it came to pass that God variously gave Petitioner a message for these three individuals. As Petitioner had agreed, he wrote God's message down and gave each person his or her "letter" containing God's words and message. The messages were in God's words and very Biblical-sounding in nature.

8. Petitioner never passed along a message from God to anyone who did not request such a communication. Moreover, Petitioner did not preach or impose his religion on anyone during working hours. Importantly, there was no evidence that Petitioner's religious activity or passing of messages impacted or affected his work, other employees' work, or the work environment.

9. On August 6 or 8, 1999, around 2:00 p.m., Petitioner was called to the manager's office by Rocky Smith and Kelley Touchstone. He was terminated for giving the "word of God" to one of the three individuals who had requested such from Petitioner. Petitioner was shown a "letter" he had given to one of the three employees. The evidence did not show which employee had received the "letter." Petitioner was not allowed to explain his action or to point out that these activities took place on his own time. The only reason given by the employer for the termination was that Petitioner's activities created a hostile working environment or in some way disrupted the work

   environment. Absolutely no evidence to support these reasons was submitted by the Respondent. Moreover, no evidence of any reasonable accommodation of Petitioner's religion was submitted by Respondent. From the evidence submitted at the hearing, Respondent terminated Petitioner based on his religion and, thereby, committed an unlawful employment act.

10. Three weeks after his termination Petitioner was employed by Simoniz Wash Depot and Lube Company at a salary greater than his salary at the Respondent's. Other than the three-week interlude, Petitioner has been employed and not been monetarily damaged. Petitioner is entitled to back pay in the amount of $298.80 per week for the three weeks he was unemployed.

    CONCLUSIONS OF LAW

    
    

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

12. Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:

    (1)(a) To discharge or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

13. Indeed, the First Amendment "gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." Otten v. Baltimore Ohio Railroad Company, 205 F.2d 58, 61 (2nd Cir. 1953). Compare Estate of Thornton v. Calder, 472 U.S. 703, 86 L.Ed.2d 557, 105 S. Ct. 2914 (1985), with Hobbie v. Unemployment

    Appeals Commission, 480 U.S. , 94 L.Ed.2d 190, 108 S. Ct.

    
    

    (1987).

    
    

14. FCHR and the Florida courts have determined that federal discrimination laws should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional

    Medical Center, 16 FALR 567 (FCHR 1993).

    
    

15. The Supreme Court of the United States established in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

16. Pursuant to this analysis, petitioner has the burden of establishing by a preponderance of the evidence a prima facie

    case of unlawful discrimination. If a prima facie case is established, respondent must articulate some legitimate, non-discriminatory reason for its employment action. If the employer articulates such a reason, the burden of proof then

    shifts back to petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the Plaintiff's explanation of intentional discrimination." 509 U.S. at 519.

17. In Hicks, the Court stressed that even if the fact finder does not believe the proffered reason given by the employer, the burden at all times remains with petitioner to demonstrate intentional discrimination. Id.

18. Under decisions of lower federal courts, an employee seeking redress for discharge based on religious discrimination has the burden to establish a prima facie case by proving that:

    1. He had a bona fide religious belief;

    2. He informed his employer of his

       religious views and that they were in conflict with his responsibilities as an employee; and

    3. He was discharged because of his observance of that belief.

       
       

       Proctor v. Consol. Freightways Corp. of Delaware, 795 F.2d 1472, 1475 (9th Cir. 1986). To the same effect, see Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401

       (9th Cir. 1978), cert. den. 442 U.S. 921, 61 L.Ed.2d 290,

       99 S. Ct. 2848 (1979), and the decision in Turpen v. Missouri- Kansas-Texas Railroad Company, 736 F.2d 1022, 1026 (5th Cir. 1984).

19. But, under federal statutory law, it is "an unlawful employment practice for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees . . . ." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 53 L.Ed.2d 113, 125,

    97 S. Ct. 2264 (1977).

    
    

20. As indicated earlier, if a prima facie case is established, a presumption of discrimination arises and the burden shifts to Respondent to advance a legitimate,

    non-discriminatory reason for the action taken against Petitioner. However, Respondent does not have the ultimate burden of persuasion but merely an intermediate burden of production. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner. Petitioner must then demonstrate that the offered reason was merely a pretext for discrimination.

21. Petitioner met his initial burden to establish a prima facie case here. He showed that observance of his religious beliefs cost him his job. Respondent produced no evidence of a valid reason for Petitioner's termination. See Price Waterhouse v. Hopkins, 490 US 228 (1989). The "burden was thereafter upon

    . . . [Respondent] to prove . . . [it] made good faith efforts to accommodate . . . [Petitioner's] religious beliefs and, if those efforts were unsuccessful, to demonstrate that they were unable reasonably to accommodate his beliefs without undue hardship." Anderson vs. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978), cert. den. 442 U.S.

    921, 61 L.Ed.2d 290, 99 S. Ct. 2848 (1979). "If an employer can show that no accommodation was possible without undue hardship, it makes no sense to require that he engage in a futile act." E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).

22. "The term 'reasonable accommodation' is a relative term and cannot be given a hard and fast meaning." Redmond v. GAF Corp., 524 F.2d 897, 902 (7th Cir. 1978). But courts have, in other cases, sanctioned redress for discharge of employees whose recurring weekly religious obligations have conflicted with work requirements rendering them unable to perform their work duties during prescribed hours altogether. Brown v.

General Motors Corp., 601 F.2d 956 (8th Cir. 1979); Kentucky Commission on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350 (Ky. 1982), cert. den. 77 L.Ed.2d 1369, 103 S. Ct. 3115 (1983);

North Shore University Hospital v. State Human Rights Appeal

Board, 82 A.D.2d 799, 439 N.Y.S.2d 408 (S. Ct. 1981). Contra

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,

97 S. Ct. 2264, 53 L.Ed.2d 113 (1977); United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976); Murphy v. Edge

Memorial Hospital, 550 F.Supp. 1185 (N.D. Ala. 1982); New Hanover Human Relations Commission v. Pilot Freight Carriers, Inc., 351 S.E.2d 560 (Ct. Appt. N.C. 1987). Similarly, the courts have also split where accommodation with recurring holy days was at issue. Compare Brener v. Diagnostic Center Hospital, 671 F.2d 141 (5th Cir. 1982), with Edwards v. School Board of City of Norton, VA., 483 F.Supp. 620 (W.D.Va.). In the present case, Petitioner asked for no time off, only that he be permitted to, on his own time, pray and pass along God's messages to those who had asked Petitioner for such. Even when the employer is not an arm of government and, therefore, free from the constraints the First Amendment imposes on government, the "burden of attempting an accommodation rests with the employer rather than the employee." E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).

Absolutely no effort at accommodation was made by Respondent. Anderson vs. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978).

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order granting the Petition for Relief and awarding backpay for the three weeks Petitioner was unemployed.

DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 4th day of December, 2001.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Thomas E. Logsdon

3005 East Avery Street Pensacola, Florida 32503

Lillian Rosa

3383 North State Road 7

Fort Lauderdale, Florida 33319

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: 01-002371

Orders for Case No: 01-002371