STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINA BRUCE,

Petitioner,

vs.

CASH COW US CAPITAL,

Respondent.

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) Case No. 03-1833

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 4, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Christina M. Bruce, pro se

120 White Drive, A-20 Tallahassee, Florida 32301

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 4, 2001.

PRELIMINARY STATEMENT

On May 4, 2001, Petitioner, Christina Bruce, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Money for You/Cash Cow violated Section 760.10, Florida Statutes, by discriminating against her on the basis of race and gender. The Charge of Discrimination alleged wrongful termination.

The allegations were investigated and on April 9, 2003, FCHR issued its determination of "No cause" and Notice of Determination: No Cause.

A Petition of Relief was filed by Petitioner on May 15, 2003, naming Cash Cow US Capital as Respondent. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about May 20, 2003. A Notice of Hearing was issued on May 30, 2003, setting the case for formal hearing on August 5, 2003. An Amended Notice of Hearing was issued on

June 9, 2003, rescheduling the final hearing for August 4, 2003. The Notice of Hearing and Amended Notice of Hearing were mailed to Petitioner and to Respondent at the addresses provided by FCHR.

At the time the hearing was scheduled to commence, the hearing was opened but no appearance was made on behalf of Respondent. The hearing recessed for approximately 30 minutes

to give a representative of Respondent an opportunity to appear, but no appearance was made on Respondent's behalf.

At hearing, Petitioner presented the testimony of Folanda Miller and testified on her own behalf. Petitioner offered Exhibits numbered 1 through 7 which were admitted into evidence.

The hearing was not transcribed. Petitioner filed a post- hearing written submission on August 15, 2003, which has been considered in the preparation of this Recommended Order.

Respondent has not filed any post-hearing submission. All citations are to Florida Statutes (2001) unless otherwise

indicated.

FINDINGS OF FACT

1. Petitioner is an African-American woman who was employed by Respondent from July 2000 until her termination on January 24, 2001. At the time she was hired, the staff at the store location where Petitioner was employed was comprised of mostly black females.

2. Initially, Petitioner held the position of hotline operator. In December 2000, she became an assistant manager of the store and another African-American woman, Latasha Green became the store manager. According to Petitioner, problems began to arise after she and Ms. Green were promoted to managerial positions.

3. While an assistant manager, Petitioner's duties included closing the store and taking deposits to the bank where she had a key to the store's safe deposit box.

4. On January 5, 2001, Petitioner and Ms. Green attended a meeting with their supervisor, Jason Rudd, a white male. This meeting was upsetting to Petitioner because of comments made to her and to Ms. Green by Mr. Rudd. In particular, Mr. Rudd commented that there were too many "dark clouds" in the store, which Petitioner interpreted to be racist remarks.

5. At the January 5, 2001, meeting, Petitioner learned that a white male, Jason Smith, was going to be brought in as the new store manager. With this change in personnel, Ms. Green was demoted from store manager to assistant manager and Petitioner was demoted from assistant manager to hotline operator.

6. When Petitioner was demoted, she did not receive a cut in pay.

7. Petitioner informed Mr. Rudd that it was her intention to leave her employment with Respondent because her sister was ill. She informed Mr. Rudd that January 25, 2001, would be her last day. However, she was terminated on January 24, 2001.

8. Between January 4 and January 24, 2001, three white males were hired, and four black females, including Petitioner and Ms. Miller, were discharged.

9. The reason for her termination on the Report of Employee's Termination form was "not working out." However, on the same form, her job performance, attendance, and cooperation were rated as "good." Additionally, the form had a blank following the question, "Would you rehire this employee?" The blank was filled in, "yes."

10. Petitioner filed for unemployment compensation and initially received $512.00 in unemployment benefits. However, after a telephone hearing, the Division of Unemployment Compensation informed her that she must repay the $512.00.

11. At the time of her discharge, Petitioner was earning approximately $250.00 per week.

12. Petitioner seeks back pay, the $512.00 in unemployment compensation, and a verbal apology from Respondent.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57.

14. Section 760.10(1) states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or gender.1/

15. In order to make out a prima facie case of discrimination under Section 760.10(1)(a), Petitioner must show that she is a member of a protected class, that she was fully qualified for the job, that she was subject to an adverse employment decision, and that persons who are not a member of the protected class(s) were not subject to the adverse employment action. See McDonell Douglas Corp., v. Green, 411

    U.S. 792 (1973); and Texas Department of Community Affairs v.

    
    

    Burdine, 450 U.S. 248 (1981). Under this well established model of proof, a Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411

    U.S. at 802; Burdine, 450 U.S. at 252-253. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Department of Corrections v. Chandler, supra; Alexander v. Fulton County, GA, 207 F.3d 1303 (11th Cir. 2000).

16. Once the employer articulates a legitimate non- discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, 582 So. 2d 1183 at 1186: Alexander v. Fulton County, GA, supra.

17. Petitioner has met her burden of proving a prima facie case of discrimination. As an African-American women, she is a member of two protected classes, she was qualified for the job (this is presumed because she held the position of assistant manager and her termination form indicated that her job performance was good and that she would be re-hired); she was subject to adverse employment actions (demotion and termination), and persons outside the protected class were not terminated.

18. Because of Respondent's failure to attend the hearing, thereby not availing itself of the opportunity to articulate a legitimate, non-discriminatory reason for its actions, Petitioner's prima facie case of discrimination is unrebutted and Petitioner is not required to prove pretext.

19. However, neither the Division of Administrative Hearings nor FCHR has authority to issue any order regarding the payment or repayment of unemployment compensation claims. Additionally, no authority exists to require Respondent to apologize to Petitioner.

20. Regarding back pay, Petitioner acknowledged that she informed her supervisor that she intended to leave her employment on January 25, 2001, for reasons unrelated to her charge of discrimination. Her termination was on January 24, 2001. Accordingly, her termination resulted in her only losing one day of pay. Since her salary was $250.00 per week, the rate of pay for one day of work is approximately $50.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order finding that Respondent engaged in unlawful discrimination and paying Petitioner $50.00 in back pay.

DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 18th day of September, 2003.

ENDNOTE

1/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Christina M. Bruce

120 White Drive, A-20 Tallahassee, Florida 32301

Michelle Smith

Director of Human Resources Cash Cow US Capital

1637 Metropolitan Boulevard, Suite C Tallahassee, Florida 32308

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

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk 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: 03-001833

Orders for Case No: 03-001833