GEORGIA A. MILLER,
vs.
Respondent.
) Case No. 02-2500
A formal hearing was conducted in this case on August 30, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Georgia A. Miller, pro se
For Respondent: J. Steven Carter, Esquire
Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049
The issues are whether Petitioner timely filed her Petition for Relief, and if so, whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race.
On September 23, 1998, Petitioner Georgia A. Miller (Petitioner), filed a charge of discrimination with the Florida Commission on Human Relations (FCHR). Petitioner's charge alleged that Respondent Swifty Mart, Inc. (Respondent), had terminated her from her position as a cashier based on her race.
On May 8, 2002, FCHR issued a "Determination: No Cause" regarding Petitioner's charge of discrimination. In addition, FCHR issued a "Notice of Determination: No Charge" on May 8, 2002.
Petitioner filed an undated Petition for Relief with FCHR on June 14, 2002.
FCHR referred the Petition for Relief to the Division of Administrative Hearings (DOAH) on June 19, 2002.
A Notice of Hearing dated July 5, 2002, scheduled the hearing for August 30, 2002.
At the hearing, Petitioner testified on her own behalf and presented the testimony of two witnesses. Petitioner offered five exhibits, which were accepted into evidence.
Respondent presented the testimony of three witnesses at the hearing. Respondent offered 13 exhibits. Respondent's Exhibit Nos. R1 through R6 and R8 through R13 were accepted into evidence. Respondent's Exhibit No. R11 is Charles Nichol's deposition testimony that was accepted in lieu of live testimony
during the hearing. The undersigned reserved ruling on the admissibility of Respondent's Exhibit No. R7 pending Respondent's post-hearing filing of Denise Crawford's deposition testimony.
The parties did not file a transcript of the proceedings with the Division of Administrative Hearings.
On September 9, 2002, Respondent filed the deposition testimony of Denise Crawford, FCHR's Clerk. Ms. Crawford's testimony is hereby accepted in lieu of live testimony during the hearing. Based on Ms. Crawford's testimony, Respondent's Exhibit No. R7 is hereby accepted into evidence.
Respondent filed a Proposed Recommended Order on September 9, 2002. As of the date of the issuance of this
Recommended Order, Petitioner had not filed proposed findings of fact or conclusions of law.
At all times material to this proceeding, Respondent operated a convenience store (the store) in Havana, Florida.
In July 1998, Respondent hired Petitioner, a black female, as a midnight shift cashier for the store at $5.50 per hour. Charles Nichols, the store manager, made the decision to hire Petitioner.
In addition to Petitioner and the store manager, Respondent employed five or six other cashiers--one American
Indian female, one Hispanic male, two white females, and one or two white males. Petitioner was Respondent's only black employee.
As part of her work orientation, Mr. Nichols furnished Petitioner with a copy of a cashier's job duties, which she signed and dated July 8, 1998. Mr. Nichols also provided Petitioner with other hiring and orientation information, including but not limited to, an employee handbook explaining Respondent's anti-discrimination policies.
Mr. Nichols was responsible for the day-to-day operations at the store. Petitioner admits that Mr. Nichols was the best boss she ever had, at least until September 7, 1998, when Respondent terminated her employment.
Shortly after she was hired, Petitioner's payroll check failed to include some overtime work. Mr. Nichols advanced or loaned Petitioner the correct amount out of his own pocket until the mistake could be corrected.
On another occasion, Petitioner intentionally left her midnight shift (11:00 p.m. to 7:00 a.m.) two hours early, leaving a new trainee (Jason Smith) in charge of the store. While such conduct was unacceptable, Mr. Nichols decided to counsel Petitioner instead of terminating her.
Petitioner complained about working the midnight shift due to her family responsibilities. Mr. Nichols attempted to
accommodate Petitioner by scheduling her to work the evening shift (3:00 p.m. to 11:00 p.m.) when possible.
Respondent hired Jason Smith to work at the store as a cashier shortly after Petitioner began her employment. In early September 1998, Mr. Nichols and Respondent's regional manager, Clev Mathias, promoted Jason Smith to assistant store manager.
An assistant store manager has many of the same day- to-day duties and responsibilities as the store manager. The assistant store manager acts as store manager when the manager is not present. Accordingly, the assistant store manager's duties include being responsible for the entire store operations, supervising employees, and directing the cashiers in the performance of their duties.
The assistant manager does not make final decisions related to personnel matters. Instead, an assistant manager may recommend that the store manager take disciplinary action, including termination.
Generally, only one employee is on duty during the evening and day shifts at the store. Respondent assigns two employees to work the midnight shift. However, during busy times, like Friday and Saturday nights, Respondent assigns a floor person (which is an additional employee) to the evening shift to assist with some of the cleaning duties.
In 1998, Respondent insisted that its employees keep the store clean and presentable to customers. The company's mission statement was "selling fresh products in a clean and bright store." The mission statement meant that the store should sparkle and shine as much possible.
In order to ensure compliance with its cleanliness policy, Respondent used mystery shoppers to conduct "Pride Ride" inspections. Employees received awards for clean stores, which usually resulted in better sales. Therefore, it was "imperative" that every employee working on every shift, including the store manager, perform basic cleaning duties. In fact, one of the essential job duties of a cashier was to "maintain the cleanliness and appropriate image of entire store, inside and out."
At a minimum, Respondent expected its employees to mop the high traffic areas, keep the food counters and fountains clean and presentable to customers, keep the Parrot Ice machine operational and clean, and keep the cooler stocked and cleaned. These were basic cleaning duties which did not have to be posted on the store's bulletin board as special cleaning duties.
If an employee working on one shift failed to perform the basic cleaning duties, the employee on the next shift would have to do the work, creating "double cleaning" duties for the
new shift. Employees were not supposed to leave the premises after a shift until the store met the cleanliness standard.
The evening shift was generally busier than the midnight shift at the store. The average sales volume for an evening shift was between approximately $300 to $500 per hour. On Sunday nights, the average volume would be approximately $200 to $400 per hour. However, during a busy time, the evening shift may have a sales volume of approximately $500 to $700 per hour.
On Sunday, September 6, 1998, Petitioner was assigned to work the evening shift for the store. She was the only employee assigned to work that shift. The employees that were assigned to the subsequent midnight shift and who would be relieving Petitioner were Rodney Smith (Jason Smith's father) and Marie Sargent.
Rodney Smith usually showed up early for his assigned midnight shift. He arrived at the store at approximately
10:00 p.m. on September 6, 1998, and observed that the store was not clean. As Rodney Smith began filling and cleaning the Parrot Ice machine, he noticed that Petitioner appeared to be socializing with a male at the counter for an extended period of time. Accordingly, Rodney Smith paged the assistant manager, Jason Smith, so that he could see the condition of the store.
Jason Smith worked the day shift at the store on September 6, 1998. When he finished his shift and when Petitioner began her shift at 3:00 p.m., the store was clean.
Jason Smith remained in the store's office for a while after his shift ended. On two occasions, Jason Smith's use of the office phone caused a delay in Petitioner's ability to operate the credit card machine. The first time, Petitioner stepped to the office door and asked Jason Smith to hang up the phone. The second time, Petitioner yelled from the cash register telling Jason Smith to hang up the phone. Jason Smith agreed but told Petitioner the she should not yell.
At approximately 7:30 p.m. on September 6, 1998, Jason Smith's girlfriend picked him up for a date. The store was clean when he left the store.
Jason Smith was leaving the home of his girlfriend's parents when he received the page from Rodney Smith at approximately 10:07 p.m. After receiving the page, Jason Smith proceeded immediately to the store.
When Jason Smith arrived at the store, he also noticed that Petitioner was behind the counter talking to a male. Jason Smith checked with Rodney Smith to make sure there was no emergency (such as a robbery, fire, etc.) and was told to look at the condition of the store. Jason Smith then proceeded to inspect the convenience store and noticed that the condition of
the store was unacceptable. Specifically, Jason Smith noticed the following:
That the floor, especially in the high traffic areas, had not been mopped and was very dirty.
That the drink fountain had not been cleaned and there was ice on the floor and counter.
That the hot dog machine had not been cleaned and the hot dogs that were in the machine had burned.
That the Parrot Ice machine was beeping which indicated that it had not been filled with liquid and also, because the machine had been left on, the Parrot Ice liquid had continued to dispense the product onto the machine and then onto the floor.
That the cooler had not been stocked.
The condition of the store at the time Jason Smith inspected it on the night of September 6, 1998, was in violation of Respondent's policy regarding cleanliness and store image. Jason Smith also noticed that Petitioner continued to lean on the counter talking to the male while he inspected the store.
Jason Smith then called Mr. Nichols to let him know about the unacceptable condition of the store. Jason Smith wanted Mr. Nichols's advice as to the appropriate response to the situation.
Mr. Nichols instructed Jason Smith to run an X-2 report from the cash register. The purpose of running the X-2 report was to determine the volume of sales for the store in the
last hour. If the volume of sales was unusually high, it would mean that Petitioner had been too busy with customers to perform the regular shift cleaning duties. A high volume of sales would have explained the unacceptable condition of the store.
As instructed by the store manager, Jason Smith ran the X-2 report which indicated that the store had only $50 of sales during the last hour on the evening shift. This small amount of sales during the past hour would not have prevented Petitioner from performing the basic cleaning duties required for that shift.
When Jason Smith first attempted to run the X-2 report, Petitioner immediately became belligerent and hostile and was very upset that Jason Smith was trying to run this type of report on the register. She then called Mr. Nichols to complain about the situation.
Jason Smith communicated the result of the X-2 report to Mr. Nichols. The store manager then informed Jason Smith that he should instruct Petitioner to perform the basic shift duties necessary to clean the store and to get the store in acceptable condition before she left her shift that night.
Based on the instruction from the store manager, Jason Smith gave Petitioner verbal instructions to perform certain basic cleaning duties of a cashier, including filling the Parrot Ice machine and mopping and sweeping the high traffic areas.
Since his initial inspection of the store, Jason Smith noticed that beer bottles had spilled and were broken in the cooler which created an additional mess. Therefore, his instruction to Petitioner included stocking and cleaning the cooler. To ensure that there was no confusion about the instructions, Jason Smith provided Petitioner specific written instructions to perform these basic duties.
When Petitioner received these verbal and written instructions, she once again became very agitated and belligerent. Petitioner was loud and obnoxious to Jason Smith, using profane language in front of customers and another employee. In response to Petitioner's hostile reaction, Jason Smith confirmed to Petitioner that she would have to perform these basic duties before she left the store that night.
Jason Smith left the written instructions in the store's office. On the reverse side of the list, Jason Smith wrote Mr. Nichols a note regarding Petitioner's hostile attitude. Jason Smith then left the store because his presence seemed to aggravate Petitioner.
After Jason Smith left the store, Petitioner continued to complain about Jason Smith in front of customers. She wrote Mr. Nichols a note stating that she wanted a transfer to another store because she would not work under Jason Smith anymore. She
did not perform the duties that were specifically assigned to her by Jason Smith before she left her shift that night.
The next day, on September 7, 1998, Mr. Nichols reviewed the handwritten note from Jason Smith indicating that Petitioner refused to perform the duties. Mr. Nichols also confirmed with Rodney Smith that these events had occurred as described. Mr. Nichols then had a discussion with Jason Smith to determine how to handle the situation with Petitioner.
According to Respondent's policy, Petitioner's conduct on September 6, 1998, was such that termination was appropriate. Recognizing that any employee could have a bad day, Mr. Nichols and Jason Smith decided that they wanted to give Petitioner an opportunity to explain her conduct on September 6, 1998. Therefore, Mr. Nichols called Petitioner to come to the store and talk with them about the situation and her conduct on September 6, 1998.
Upon arriving at the store to meet with Jason Smith and Mr. Nichols, Petitioner continued to respond in a hostile and belligerent tone. She refused to provide them any explanation for her conduct on September 6, 1998. Specifically, Petitioner did not explain the following: (a) her refusal to perform the assigned duties; (b) her refusal to follow a direct order from the assistant manager; and (c) her belligerent and
hostile attitude against the assistant manager in front of customers and other employees.
Based on Petitioner's conduct on September 6, 1998, and her further refusal to provide an adequate explanation for her conduct, Jason Smith recommended to Mr. Nichols that Respondent terminate Petitioner. Mr. Nichols agreed with the recommendation, terminating Petitioner's employment based on her insubordination and refusal to perform job duties. Respondent's regional manager approved Mr. Nichols's decision to terminate Petitioner.
Mr. Nichols and Jason Smith prepared and signed an employee conference summary report on September 7, 1998. When they presented the report to Petitioner, she refused to sign it.
Mr. Nichols also prepared and signed a final personnel action record on September 7, 1998. The personnel action record documents Petitioner's termination effective September 7, 1998, for "insubordination, refused to perform duties."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceedings. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
Section 760.11(7), Florida Statutes, requires a complainant to file a Petition for Relief, requesting an
administrative hearing, within 35 days of the date that FCHR issues a Determination: No Cause. "If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred." Section 760.11(7), Florida Statutes.
FCHR issued a Notice of Determination: No Cause and a Determination: No Cause in this case on May 8, 2002. That same day, the Notice was mailed to Petitioner at her address of record, using the 31729 zip code for Calvary, Georgia. The notice expressly advised Petitioner of her right to request an administrative hearing by filing a Petition for Relief within 35 days of May 8, 2002. In other words, Petitioner had to file her petition on or before June 12, 2002.
On June 13, 2002, Petitioner mailed her Petition for Relief to FCHR. The return address on the envelope containing the petition was Petitioner's address of record, using the 31729 zip code for Calvary, Georgia. FCHR received the Petition for Relief on June 14, 2002, two days after expiration of the 35-day period.
Petitioner asserts that she did not receive the Determination: No Cause in a timely manner because the zip code for her mailing address in Calvary, Georgia, currently is 39829. Petitioner's claim is not persuasive because as late as June 13, 2002, Petitioner used the 31729 zip code for Calvary, Georgia, in her mailing address. More importantly, Petitioner has the
responsibility to ensure that her address of record, including the zip code, is current at all time.
There is no credible evidence to support a finding of equitable tolling in this case. Consequently, Petitioner's claim is barred pursuant to Section 760.11(7), Florida Statutes.
To the extent that Petitioner's claim is not barred, she failed to present a prima facie case of racial discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
In Anthony T. Lee, et al. v. Russell County Board of Education of Russell County, Alabama, et al., 684 F.2d 769, 773 (11th Cir. 1982), the court stated as follows:
Focusing first on the race discrimination charge, it is well established that such a claim may be analyzed under the McDonnell Douglas structure developed in Title VII suits. The McDonnell Douglas test, as recently explained by the Supreme Court in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981), and as modified by this circuit for application in discharge (as opposed to hiring) cases, is as follows: If the plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was discharged while a person outside of the class with equal or lesser qualification was retained, then plaintiff has established a "prima facie case" of discrimination.
In Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.
1989), the court stated as follows:
Accordingly, we hold that, in cases involving alleged racial bias in the application of discipline for violation of work rules, the plaintiff, in addition to being a member of a protected class, must show either (a) that he did not violate the work rule, or (b) that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct.
Petitioner is a member of a protected class. She is qualified to work as a cashier. Respondent terminated her employment. However, she failed to show the following:
(a) that she was not insubordinate; (b) that she engaged in misconduct similar to that of a person outside the protected class and that the disciplinary measures enforced against her were more severe than those enforced against the other person who engaged in similar conduct; (c) that she was discharged while a person outside the protected class, with equal or lesser qualifications, was retained; or (d) that Respondent replaced her with a person outside the protect class who had equal or lesser qualifications.
Assuming that a complainant proves a prima facie case of discrimination, an employer has the burden of production to articulate a legitimate nondiscriminatory reason for the adverse
action. See St. Mary's Honor Center v. Hicks, 519 U.S. 502, 506 (1993). If the employer meets its burden, the complainant must then prove that the reason articulated by the employer was a pretext for discriminatory action. St. Mary's Honor Center,
519 U.S. at 515-516. The complainant always retains the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the complainant. St. Mary's Honor Center, 519 U.S. at 508 and 511.
In this case, Respondent met its burden of producing a legitimate nondiscriminatory reason for its action by showing that Petitioner was discharged for being insubordinate and refusing a direct order to perform basic cleaning duties. Petitioner produced no credible evidence to show that Respondent's reason for the adverse action was a pretext for
discrimination.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 19th day of September, 2002, in Tallahassee, Leon County, Florida.
J. Steven Carter, Esquire Henry, Buchanan, Hudson,
Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2002.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Georgia A. Miller Post Office Box 156
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.
