STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA HACKWORTH,

Petitioner,

vs.

DEBONAIR CLEANERS, INC.,

Respondent.

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) Case No. 01-4801

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RECOMMENDED ORDER

A formal hearing was conducted in this case on February 21, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gloria Hackworth, pro se

712 West Laura Street Pensacola, Florida 32501

For Respondent: Charles G. Johnson, President

Debonair Cleaners, Inc. Post Office Box 55594 Jackson, Mississippi 39296

STATEMENT OF THE ISSUE

The issue is whether the Florida Commission on Human Relations has jurisdiction to determine whether Respondent committed an unlawful employment act against Petitioner in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On February 29, 2000, Petitioner Gloria Hackworth (Petitioner) filed a Charge of Discrimination against Respondent Debonair Cleaners, Inc. (Respondent). According to the Charge of Discrimination, Respondent allegedly discriminated against Petitioner based on her race during the time that Petitioner worked for Respondent.

On or about November 9, 2001, the Florida Commission on Human Relations (FCHR) issued a Notice of Determination: No Jurisdiction. In a Notice of Determination: No Jurisdiction dated that same day, FCHR gave Petitioner the right to request an administrative hearing.

On or about December 1, 2001, Petitioner filed a Petition for Relief with FCHR. The petition alleges that Respondent's manager made fun of Petitioner after she underwent a surgical procedure.

FCHR referred the case to the Division of Administrative Hearings on December 13, 2001. On December 28, 2001, the undersigned issued a Notice of Hearing, scheduling the hearing for February 21, 2002.

During the hearing, Petitioner testified on her on behalf.

She did not offer any exhibits for admission into evidence. Respondent presented the testimony of one witness and offered 13 exhibits that were accepted into evidence.

A Transcript of the proceeding was filed on March 7, 2002.

The parties elected not to file proposed recommended orders.

FINDINGS OF FACT

1. Petitioner is a black female who was employed by Respondent as a press finisher. Petitioner worked for Respondent from January 1999 through June 4, 1999.

2. Petitioner's work attendance was sporadic due to personal problems. Petitioner eventually developed a medical condition requiring surgery. At Petitioner's request, Respondent allowed Petitioner to work part-time.

3. In March 1999, Petitioner's doctor performed a biopsy on Petitioner. When Petitioner returned to work, she jokingly commented that the doctor had taken a chunk of meat out of her. Respondent's manager responded in a similar tone by asking Petitioner if she felt lighter. Petitioner was insulted by the manager's comment.

4. The next week, Petitioner confronted Respondent's manager about the comment. Respondent's manager sincerely apologized for hurting Petitioner's feelings. Respondent subsequently reprimanded the manager for her insensitive remarks.

5. On or about April 5, 1999, Petitioner filed a complaint with the Escambia-Pensacola Human Relations Commission. Petitioner alleged that Respondent had engaged in racial

   discrimination for the following reasons: (a) Respondent's manager made rude comments to Petitioner concerning her biopsy;

   (b) Respondent's manager called a customer an "ignorant nigger" in Petitioner's presence on one occasion and refused to wait on black customers on other occasions; and (c) Respondent's manager cut Petitioner's hours, then became angry when Petitioner wanted to leave work as scheduled.

6. Petitioner underwent bladder surgery in April 1999.

   
   

   Petitioner's doctor released her to return to work on May 3, 1999. Petitioner returned to work part-time on May 4, 1999.

7. On or about May 20, 1999, Petitioner filed a form entitled Additional Information Form for Potential Charging Party with the Escambia-Pensacola Human Relations Commission. The form alleges that Respondent's staff was harassing her, discriminating against her on the basis of race, and engaging in retaliation by calling her mother's home. Petitioner indicated on the form that she had no direct evidence to support her claim of discrimination.

8. The greater weight of the evidence indicates that Respondent called Petitioner's mother because Petitioner provided Respondent with that number. Respondent made the telephone calls to determine why Petitioner had not called or shown up for work.

9. Petitioner continued to work part-time for Respondent until June 4, 1999. At that time, Petitioner advised Respondent's manager by telephone that she would no longer be able to work due to her health.

10. There is no evidence that Respondent treated Petitioner differently from other employees regardless of their race. The greater weight of the evidence indicates that Respondent did not discriminate on any basis against Petitioner, other employees, or Respondent's customers.

11. At all times relevant to this proceeding, Respondent never employed more than 15 people. In fact, Respondent employed ten full-time, on-site employees and two officer/administrator employees who reside out-of-state. Even with a high turnover of part-time/short-time employees, Respondent did not have a payroll in a single week of more than

    15 employees from January 1998 through June 1999.

    
    

    CONCLUSIONS OF LAW

    
    

12. FCHR correctly determined that it does not have jurisdiction over the subject matter of this proceeding because Respondent is not an "employer" as defined in Section 760.02(7), Florida Statutes. It follows that the Division of Administrative Hearings does not have jurisdiction for the same reason.

13. Section 760.02, Florida Statutes, states as follows:

    
    

    (7) "Employer" means any person employing

    15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.

    
    

14. Section 760.10, Florida Statutes, prohibits "employers" from engaging in unlawful employment practices. The prohibitions against discrimination apply only if the employer meets the definition in Section 760.02(7), Florida Statutes.

15. In this case, Respondent is not an employer as defined in the statute. Respondent never had 15 or more employees for

20 or more weeks in either of the two relevant calendar years.

RECOMMENDATION

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

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for Relief based on a lack of jurisdiction.

DONE AND ENTERED this 2nd day of April, 2002, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 April, 2002.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Gloria Hackworth

712 West Laura Street Pensacola, Florida 32501

Charles G. Johnson, President Debonair Cleaners, Inc.

Post Office Box 55594 Jackson, Mississippi 39296

Cecil Howard, General Counsel 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 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: 01-004801

Orders for Case No: 01-004801