STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH TERRELL GRAHAM,

Petitioner,

vs.

PIER 1 IMPORTS,

Respondent.

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) Case No. 01-3323

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on October 9, 2001, in Tallahassee, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth Terrell Graham, pro se

2811 Herring Drive

Tallahassee, Florida 32303-2511

For Respondent: Russell D. Cawyer, Esquire

Kelly, Hart & Hallman

201 Main Street, Suite 2500 Fort Worth, Texas 76102

STATEMENT OF THE ISSUE

Whether Respondent engaged in unlawful employment practices with regard to Petitioner.

PRELIMINARY STATEMENT

On October 29, 1999, Petitioner, Kenneth Terrell Graham (Graham), filed a Charge of Discrimination against Pier 1 Imports (Pier 1), with the Florida Commission on Human Relations (FCHR), alleging discrimination based on his race, black, and gender, male. On August 10, 2001, Graham filed an Election of Rights Form noting that more than 180 days had elapsed since he filed his Charge of Discrimination, and that he wished to have an administrative hearing.

On August 21, 2001, the Division of Administrative Hearings received the request from FCHR. On September 19, 2001, Graham filed a Petition for Relief with FCHR. In his petition he alleged that he was discriminated against in violation of the Florida Civil Rights Act of 1992, and Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. Section 2000e et seq. He complained that he had gotten a written reprimand for missing

a meeting of employees.

On September 28, 2001, Pier 1, in response to Graham's allegations, generally denied that discrimination had occurred.

The case was set for hearing on October 9, 2001, and was heard as scheduled. Graham offered ten exhibits into evidence. Seven were admitted. Graham's Exhibit 10 was admitted as to the first page only. Graham testified in his own behalf. Pier 1

offered six exhibits which were admitted into evidence. Pier 1 did not call any witnesses.

A transcript was prepared and filed on October 24, 2001. The parties timely submitted Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant.

2. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and

   12 p.m., Monday through Saturday.

   
   

3. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status."

4. Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom.

5. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church.

6. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action.

7. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender.

8. Graham felt humiliated because he received the Associate Corrective Action Documentation form.

9. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida

   Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes, and Section 760.11(4)(b), Florida Statutes.

11. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice to discriminate against an individual "with respect to compensation, terms, conditions, or privileges of employment on the basis of race." A mere counseling session, which is reduced to writing, falls far short of the sort of unlawful employment practice condemned by the Florida Civil Rights Act of 1992. A negative performance evaluation is insufficient to show that Graham suffered an adverse employment action. Lucas v. W.W. Grainger, Inc, 257 F.3d 1249, (11th Cir. 2001).

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination.

DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 15th day of November, 2001.

COPIES FURNISHED:

Russell D. Cawyer, Esquire Kelly, Hart & Hallman

201 Main Street, Suite 2500 Fort Worth, Texas 76102

Kenneth Terrell Graham 2811 Herring Drive

Tallahassee, Florida 32303-2511

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Ronni Morrison Pier 1 Imports

Post Office Box 961020

Fort Worth, Texas 76161-0020

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: 01-003323

Orders for Case No: 01-003323