STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET ROUSCH,

Petitioner,

vs.

IDEAL SERVICES, INC.,

Respondent.

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) Case No. 02-4392

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RECOMMENDED ORDER OF DISMISSAL

This cause came on formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on March 11, 2003, in Daytona Beach, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: No appearance

For Respondent: Diane M. Cox, Qualified Representative Ideal Services, Inc.

211 North Ridgewood Avenue Suite 203

Daytona Beach, Florida 32114 STATEMENT OF THE ISSUES

This cause concerns a Charge of Discrimination and Petition for Relief filed by the above-named Petitioner, concerning which it must be determined whether she was discriminated against by being terminated from her employment for alleged reasons of gender discrimination (female) and age discrimination (age 59).

PRELIMINARY STATEMENT

This cause arose on or about March 19, 2002, when a Charge of Discrimination was filed by the above-named Petitioner alleging that she was discriminated against by being terminated from her position of employment with the Respondent, Ideal Services, Inc. (Respondent), allegedly because of her sex and her age. She was 59 years of age at the time of the termination or "layoff." The cause was ultimately referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge by the Florida Commission on Human Relations (Commission), after dismissal by the Commission.

The Commission issued a "Notice of Dismissal and Right to Sue" on October 28, 2002, referencing the fact that the EEOC had issued a determination to the effect that it was unable to conclude that violations of the relevant statutes had been established. Accordingly, the Commission dismissed the state claim pending before it and notified the Petitioner of her right to pursue a claim before the Division of Administrative Hearings within 35 days of the date of that dismissal. Thus, the claim came to be heard before the undersigned.

The cause came on for hearing as noticed. After waiting a substantial period of time, the Petitioner failed to appear to prosecute her claim. She never appeared during the approximate one-hour duration of the hearing. The Notice of Hearing was

transmitted to the last known, valid address of the Petitioner, and there has been no communication from the Petitioner before, during, or since the hearing to indicate that she would not be attending the final hearing. She simply failed to appear.

Although the Petitioner has the burden of proof, in terms of establishing a prima facie case and the ultimate burden of persuasion that a discriminatory act occurred, the Respondent was allowed to adduce the testimony of the witnesses that it had in attendance at the hearing.

FINDINGS OF FACT

1. It was thus established that the Petitioner was working at the Lucent Technologies, Inc., job site (Lucent) as a security guard when she was terminated on June 1, 2001. She had previously been offered an opportunity to cross-train on other security posts, working in her job as a security guard so that if one post closed down, she would be already trained in performing the required duties at other security posts. She refused such cross-training, however.

2. On or about June 1, 2001, Lucent, the client of the Respondent company, Ideal Services, Inc., notified the Respondent that it would have to close down the security guard post where the Petitioner worked. Because the Petitioner had not been cross-trained and there were no other security guard posts or positions where she could work, due either to her

   failure to become cross-trained or to be qualified with a weapon-carrying license or due simply to a lack of available positions, the Respondent was forced to terminate her.

3. The Respondent offered the Petitioner other positions at comparable, although not necessarily exactly the same pay rates; some of them being at higher pay rates and one or more being lower. The Petitioner refused these job offers, however, telling the Respondent that she was going to truck-driving school to train to become a truck driver. The Respondent also offered to help the Petitioner out with on-call jobs, or "fill- in" work, which she also refused at the time. In fact, the Respondent offered the Petitioner still another full-time position at another job site at comparable pay to the pay she had earned before she was laid off, when her post closed down. She refused that job, as well.

4. The Respondent had other women as employees in comparable positions to that occupied by the Petitioner. The Respondent's Exhibits numbered one through four, in evidence, show the Respondent's employee profiles by sex and age for the Orlando area and for the whole company at all of its operational locations. Exhibit numbered three shows the pay rates for all employees, as well as the contracted clients of the Respondent company, by way of coroborative proof of the competitive jobs

   offered to the Petitioner after she was laid off and which she refused.

5. In summary, the evidence shows that the Respondent had a legitimate business reason to terminate the Petitioner from her employment. She had been advised to cross-train so that she would be qualified and competent to serve at different posts or positions of responsibility with the company. Her supervisor, Mr. Ray Bradley, had advised her to do this because he knew that Lucent was reducing operating costs and might close one or more security guard posts or positions. The Petitioner refused to so cross-train. Therefore, Mr. Bradley later did not have an opening for her when her post closed down, because he had to use other employees who had already cross-trained for varied positions or posts. Nonetheless, although it had its legitimate reason for not retaining the Petitioner in its employ, the Respondent continued to attempt to assist the Petitioner by offering her other comparable competitive positions with other security service clients, when they became available, which she

   refused.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.569, Florida Statutes.

7. The Petitioner failed to prove a prima facie case of discrimination on account of her age or her sex because she simply failed to appear and present evidence at the duly and properly-noticed formal hearing. Moreover, assuming arguendo that the Petitioner had been able to put on prima facie case, the Respondent demonstrated a legitimate business reason, not fraught with any discriminatory animus, for the Petitioner's termination from employment. There could be no showing that this was pretextual because the Petitioner failed to appear at the hearing and prosecute her claim. See McDonnell Douglas v.

Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and Jones v. Bessemer Carraway Medical Center, 137 F.3d. 1306 (11th Cir. 1998).

RECOMMENDATION

Accordingly, in consideration of the foregoing findings and conclusions, and being advised in the premises, it is

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.

DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 12th day of June, 2003.

COPIES FURNISHED:

Diane M. Cox

Ideal Services, Inc.

211 North Ridgewood Avenue Suite 203

Daytona Beach, Florida 32114

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

Tallahassee, Florida 32301

Janet Rousch

2212 Point of Rocks Road Chesterfield, Virginia 23836

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 of

Dismissal. 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: 02-004392

Orders for Case No: 02-004392