STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADDA SANTIAGO,

Petitioner,

vs.

ECKERD CORPORATION, d/b/a ECKERD DRUGS,

Respondent.

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) Case No. 02-1957

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RECOMMENDED ORDER

Pursuant to notice a final hearing was held in this case on August 5, 2002, in Miami-Dade County, Florida, before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Adda Santiago

Carlton Bay Condo

2821 Northeast 163rd Street Apartment 2T, Sunny Isle Boulevard Miami Beach, Florida 33160

For Respondent: Danielle R. May, Esquire

Eckerd Corporation, d/b/a Eckerd Drugs 8333 Bryan Dairy Road

Largo, Florida 33777 STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against by reason of national origin.

PRELIMINARY STATEMENT

By Petition dated August 16, 1999, Petitioner Adda Santiago (Petitioner or Santiago) charged her former employer, Respondent Eckerd Corporation (Respondent or Eckerd) with discrimination on the basis of her age and national origin. The Florida Commission on Human Relations (the Commission) issued a no cause order on January 14, 2002. Petitioner timely requested an administrative hearing with respect to the national origin discrimination claim only.

At the hearing, Petitioner testified in her own behalf and introduced Exhibits 1-4 which were admitted in evidence.

Respondent presented the testimony of Paul Harris and Susanna Peralta, both of whom were Eckerd store managers at the time of the events giving rise to Petitioner's claims.

Respondent also introduced Exhibits 1-3 which were admitted in evidence.

The transcript of the proceedings was filed on September 9, 2002.

Petitioner has not filed a Proposed Recommended Order. Respondent filed a Proposed Recommended Order which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. From October 5, 1997, through October 4, 1998, Santiago was employed by Eckerd's as a Front End Associate and a Drug Clerk.

2. During that time, Santiago worked in two of Eckerd's Miami stores under the supervision of store managers Paul Harris (Harris) and Susanna Peralta (Peralta).

3. Santiago was a difficult employee to schedule in that she limited the hours during which she was available to work. For that reason it was necessary for her to work in two different stores; still Eckerd had trouble finding enough work hours for her at times when she was available.

4. In a final effort to secure adequate hours for Santiago, in July 1998 Eckerd placed her in its store managed by Peralta. At that time, 17 of 29 store employees (approximately

   59 percent) were Hispanic, including store manager Peralta.

   
   

5. During the time Petitioner worked at the Eckerd from which she transferred, 18 of 44 associates (approximately

   41 percent) were Hispanic.

   
   

6. Santiago claims that Harris was hostile towards her because she is Hispanic.

7. Harris and Peralta unequivocally denied any discriminatory actions or intent with respect to Santiago. Their demeanor under oath was serious and straightforward, and

   the undersigned credits their testimony. Santiago expressed her strong view that she was the victim of a vendetta by Harris rooted in discrimination, but there was no evidence or exhibits which would provide the type of corroborating detail one would expect to find if a retail manager in fact ran his store in a manner prohibited by law.

8. Unrebutted testimony presented by Eckerd establishes that Santiago was terminated in good faith because she failed to report to work for three consecutive days. Her testimony suggests that Santiago may have been genuinely confused regarding whether she was in fact scheduled to work on those days. Assuming Santiago had made an honest error in not reporting for work, such a misunderstanding would not furnish a basis to conclude that she was terminated on account of her

   national origin.

   
   

   CONCLUSIONS OF LAW

   
   

9. In charging employment discrimination by reason of national origin, it is Petitioner's burden in the first instance to present evidence that demonstrates a prima facie case. See Canino v. U.S.E.E.O.C., 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982). This she has failed to do. There is no evidence that any Eckerd employee harbored any discriminatory intent toward Hispanics in general or Santiago in particular.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this case with prejudice.

DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 30th day of October, 2002.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Danielle R. May, Esquire

Eckerd Corporation, d/b/a Eckerd Drugs 8333 Bryan Dairy Road

Largo, Florida 33777

Adda Santiago Carlton Bay Condo

2821 Northeast 163rd Street Apartment 2T, Sunny Isle Boulevard Miami Beach, Florida 33160

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-001957

Orders for Case No: 02-001957