STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKEYTA GIVENS,

Petitioner,

vs.

U S MORTGAGE, INC.,

Respondent.

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) Case No. 03-3590

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RECOMMENDED ORDER

A hearing in the above-styled cause was held pursuant to notice on December 11, 2003, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lakeyta Givens, pro se

Post Office Box 293 Sanderson, Florida 32063

For Respondent: Was not represented and did not appear.

STATEMENT OF THE ISSUE

Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case arose when the Petitioner, Lakeyta Givens (Petitioner), filed a Petition for Relief with the Florida Commission on Human Relations (FCHR) on September 23, 2003. The

Petitioner alleged that the Respondent, U S Mortgage, Inc., by whom she had been employed, had discriminated against her because of her race by failing to promote her for a position for which she was qualified and promoting a white employee, whom Givens had trained; and by firing Givens when she complained of not being promoted. The claims were duly investigated by FCHR, which determined that there was good cause to believe that the Respondent had discriminated against the Petitioner. FCHR transmitted the case to the Division of Administrative Hearings on October 3, 2003, and when there was no response to the Initial Order, the case was set for December 11, 2003. The case was heard as noticed.

The Petitioner appeared and testified in her own behalf. The Respondent was not represented and did not appear. There were no exhibits and no transcript filed. The Petitioner did not file post-hearing proposed findings of fact.

For reasons that are not clear, although the case status was duly prepared, the status of the case was not changed and the case file misplaced while the undersigned was on vacation. As a result, this Recommended Order has been delayed in an unseemly manner for which there is no excuse and a sincerely apology is offered. Fortunately, this delay will not damage the Petitioner because of the status of the Respondent.

FINDINGS OF FACT

1. The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001.

2. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise.

   She became sufficiently knowledgeable and productive that she was tasked to train other employees.

3. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay.

4. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company.

5. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve

   the promotion, and that he would talk to her about the promotion.

6. There was no action on the promotion for a long time.

   
   

   The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company."

7. The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present.

8. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger.

9. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's

   talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner.

10. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained.

11. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004.

12. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Section 760.11, Florida Statutes.

14. Chapter 760, Florida Statutes, prohibits an employer from discriminating in its employment practices, to include promotion and discharge, based upon race.

15. The employee has the burden to establish a prima facie case of intentional discrimination by a preponderance of the evidence. If the employee makes this showing, a presumption is raised that the employer discriminated against the employee, and

    the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. See McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

16. The Petitioner was a member of a protected class. She was solicited by Mr. Catanzeriti to be a supervisor, a position for which she was qualified. Ms. Catanzeriti did not promote her. The matter was left hanging long enough that it is concluded that the promotion was denied by the actions of the Respondent. Therefore, the Petitioner was the object of an adverse employment action prior to the confrontation with Ms. Catanzeriti and its outcome.

17. The meeting between the Petitioner and Ms. Catanzeriti was about why the Petitioner had not been promoted, and the Petitioner, a black female, sought clarification about the possibility of racial prejudice as an animus for not approving the Petitioner's pending promotion.

18. Ms. Catanzeriti denied having made a racial slur; however, she became angry. Given the Petitioner's past performance and her having been put forward for promotion, the anger displayed by Ms. Catanzeriti appears inappropriate. The level of this anger is evident in her conduct, continuing the exchange even after the Petitioner left her office in an effort to de-escalate the situation. Although the Petitioner reports

    that the comments and insults were of a purely personal nature, the denial of the promotion was a fact. The alleged racial slur, although hearsay, was not inconsistent with that fact.

    The entire exchange and the subsequent firing are suspect. The promotion of a white employee, whom the Petitioner had trained, following the firing adds to the facts supporting the Petitioner's case.

19. The Petitioner has presented a prima facie case without evidence of the alleged slur and firing. The Respondent did not appear and did not rebut the presumption that the actions taken were for non-discriminatory reasons. Therefore, the Petitioner prevails.

20. The facts reveal that the promotion would have meant a

    
    

    $5.00 per hour raise for the Petitioner. Unfortunately, the Petitioner did not establish exactly when the job offer was made or exactly when she was re-employed. The damages are measured, therefore, from the time the co-worker was promoted until the Petitioner mitigated by being re-employed in April after she was fired on February 3, 2003, a period of at least two months. The supervisor's salary was $15.00 per hour.

21. Unfortunately, it appears that satisfactory recompense is not possible because of the closure of the business and less- than-certain location of its principals. However, in the chance

that some recovery might be forthcoming, the measure of damages would be eight weeks of pay at $15 per hour, or $4,800.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages.

DONE AND ENTERED this 6th day of May, 2004, in Tallahassee,

Leon County, Florida.

S

STEPHEN F. DEAN

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 6th day of May, 2004.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Lakeyta Givens

Post Office Box 293 Sanderson, Florida 32087

U S Mortgage, Inc.

28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063

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: 03-003590

Orders for Case No: 03-003590