STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE HAWKINS,

Petitioner,

vs.

BEST WESTERN,

Respondent.

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) Case No. 06-2905

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 5, 2006, in Viera, Florida, before R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Diane Hawkins, pro se

1556 University Lane, Number 407

Cocoa, Florida 32922

For Respondent: Theodore L. Shinkle, Esquire

GrayRobinson, P.A.

1800 West Hibiscus Boulevard, Suite 138

Melbourne, Florida 32901 STATEMENT OF THE ISSUE

Whether Petitioner's termination from employment by Respondent on June 15, 2005, was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2005), due to Petitioner's race (African American).

PRELIMINARY STATEMENT

On September 10, 2005, Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR). Petitioner alleged discrimination based on her race (African American).

The charge alleged that Respondent discriminated against Petitioner because, "I was harassed, denied promotion and terminated because of my race. . . . White employees who had less experience and less time on the job were given those positions."

On July 6, 2005, FCHR issued a "No Cause" determination.

Petitioner filed a Petition for Relief, requesting an administrative hearing with DOAH, on August 15, 2006.

At the final hearing on December 5, 2006, Petitioner testified on her own behalf and presented the testimony of Patricia Duncan, Martine Leane and Gladys Lakas, all of whom were former co-workers. Petitioner offered three exhibits, of which only number one was accepted into evidence. Respondent presented the testimony of five witnesses: Vicky Dunne, General Manager of Best Western; Steve Jensen, former Executive Housekeeper; Cecelia Gibson, Director of Human Resources; Lisa Peele, Supervisor/Inspector; Linda Jones, Human Resources Manager; and recalled Petitioner. Respondent offered Exhibits numbered one through eight, which were admitted into evidence.

At the conclusion of Petitioner's case-in-chief, counsel for Respondent moved for Summary Judgment (or Summary Recommended Order) based upon Petitioner's failure to establish a prima facie case without waiving presentation of Respondent's case-in- chief. The motion was denied.

Parties were given ten days from the date of the hearing or, if a transcript was filed, then ten days from that date, to file their proposed recommended orders. The Transcript was filed with the Division on December 21, 2006. Petitioner, on January 2, 2007, and Respondent, on December 29, 2006, filed Proposed Recommended Orders that were considered by the undersigned.

FINDINGS OF FACT

1. Petitioner, a Black female, was employed by Respondent from November 23, 1998, until her termination on June 14, 2005. Petitioner had performed her duties as a housekeeper adequately during her employment period and had no major disciplinary reports in her record. Her annual reviews indicate she was a fair employee. She had a history of tardiness, but seemed to be getting better in her last years of employment.

2. Petitioner had received a verbal warning notice on March 8, 2005, relating to an altercation with another employee, Katrina Stevens. It appears Petitioner did not instigate the confrontation nor did she actively participate in the argument

   between Stevens and another employee. She simply happened to be standing nearby when it occurred. A verbal warning notice is preliminary to a reprimand. The other employee, Martine Lane, received a reprimand for the incident.

3. On June 8, 2005, Petitioner received another verbal warning notice, this time for instigating negative remarks toward her supervisor. The gravamen of her complaint about the supervisor was that a certain co-worker had been named Employee of the Month instead of Petitioner.

4. Petitioner became more defiant towards her supervisors and management toward the end of her employment. She would not help out other employees when asked, preferring to tend to her own work area, even when her work was completed. She also made derogatory comments to the co-worker who had won Employee of the Month.

5. When Petitioner's behavior did not change, a decision was made to terminate her employment. It was a difficult decision because good housekeepers were hard to find and Petitioner's work product had always been acceptable.

6. Petitioner had always been well-liked and respected by fellow employees. Both co-workers and management had encouraged Petitioner to apply for supervisory positions when they opened. Her supervisors indicated that, with some training, she could handle a supervisory position.

7. The decision to terminate Petitioner from employment was made by the Executive Housekeeper, Steve Jensen. He relied upon input from other management.

8. On June 18, 2005, Petitioner was stopped from clocking in when she came to work. She was told to report to Jensen's office, which she did. At that time Jensen asked her whether she was still happy with her job, then told her she was being terminated. The reasons given were that she was not supportive, not a team player, and had become more belligerent to management. No mention of race was made as a basis for her termination and none seems to have existed.

9. Petitioner was advised she would be entitled to vacation pay, but it was later discovered she had already used up her available vacation time. Respondent subsequently called Petitioner to offer her a different job, but Petitioner had no interest in returning to work for the company.

10. Respondent has anti-discrimination policies in place, is an equal opportunity employer, and employs minorities in supervisory positions. Interestingly, however, there were no other Black housekeepers employed while Petitioner was working.

11. When a supervisory position opened, Respondent would attempt to fill the position from within its existing employee pool. Two such positions opened when Petitioner was employed. Seven then-current employees applied for those positions,

    including Petitioner. Of the seven, four had prior supervisory experience; Petitioner did not. Two of the applicants had been with the company longer than Petitioner. Five of the seven applicants had computer knowledge and skills; Petitioner did not. Petitioner is the only candidate who admitted a fear of heights, a minor consideration for the position. Petitioner is the only candidate who stated she could not work on weekends.

    Petitioner was clearly not the best applicant for the job based on comparison to other candidates.

12. Petitioner did not provide any evidence that her race was a basis for her termination from employment. None of her witnesses provided credible statements concerning discrimination. In fact, her witnesses by and large did not see any discrimination by management.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the subject matter of and the parties to this proceeding in accordance with Subsection 120.57(1), Florida Statutes (2006).

14. The Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2005), guards against discrimination in the workplace. The Act, among other things, forbids the discriminatory firing of an employee.

15. Specifically, Subsection 760.10(1)(a), Florida Statutes (2004), states that it is an "unlawful employment practice for an employer . . . to discharge . . . any individual

    . . . because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status." Respondent, Best Western, is an employer as defined in Subsection 760.02(7), Florida Statutes (2005).

16. Florida courts have determined that federal case law applies to claims arising under Florida's Civil Rights Act and, as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) applies to claims arising under Section 760.10, Florida Statutes (2004). Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (llth Cir. 2000); Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (4th DCA 2002); The Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

17. The McDonnell shifting burden analysis is as follows:

    
    

    (1) Petitioner must prove a prima facie case of discrimination by the preponderance of the evidence and (2) if Petitioner proves a prima facie case, the burden shifts to the defendant who must "articulate some legitimate, nondiscriminatory reason

    for the employee's rejection" to rebut Petitioner's presumption of a prima facie case. McDonnell, 411 U.S. at 802, 93 S. Ct. at 1824.

18. Petitioner retains the ultimate burden of persuasion in an employment discrimination case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed. 2d 207 (1981).

19. Petitioner presented neither direct evidence of discriminatory intent nor statistical evidence demonstrating a pattern of such intent. Thus, only circumstantial evidence, if any, can be applied to analyze Petitioner's claim under the McDonnell framework. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

20. Petitioner is a member of a protected class.

    
    

21. Termination is considered adverse employment action because it is an ultimate decision regarding employment. Gupta v. Fla. Bd. Of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).

22. The burden of proof in this case is on Petitioner to prove by a preponderance of the evidence the affirmative of the issue, i.e., that Respondent committed an unlawful employment practice. Florida Department of Transportation v. J.W.C. Co.

    396 So. 2d 778 (Fla. 1st DCA 1981). In order to establish a prima facie case of disparate treatment, Petitioner must show

    that she was a qualified member of a protected class and was subjected to an adverse employment action in contrast to similarly situated employees outside the protected class.

    Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999). In the present case, Petitioner attempted to meet the burden by showing she was the only African American applicant who was denied a supervisory position.

23. Assuming this initial burden was met, the burden then shifted to the employer to elucidate a legitimate, nondiscriminatory reason for the action it took. McDonnell

    Douglas, 411 U.S. at 802. It is clear from the evidence that the employer's motivation for terminating Petitioner was not related to her race. Rather, Respondent set forth a clearly stated basis for termination: Petitioner did not work well with co-workers, refused supervisor's directives, was belligerent and her work performance had slipped in recent years.

24. Thus, the burden shifts back to Petitioner to prove that the reason espoused by the employer was a pretext for illegal discrimination. Burdine, 450 U.S. at 256 and McDonnell Douglas, 411 U.S. at 804-805. Petitioner did not rebut or call into question any of her employer's bases for the action taken. Each claim made by Respondent was supported by credible evidence. This body of evidence rebuts any presumption of discrimination created by a prima facie case.

25. Based on the stated need for housekeepers (of any race) and the fact that there were many non-white employees and staff employed by Respondent, Petitioner's claim falls short.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.

DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 5th day of January, 2007.

COPIES FURNISHED:

Diane Hawkins

1556 University Lane, Number 407

Cocoa, Florida 32922

Theodore L. Shinkle, Esquire GrayRobinson, P.A.

1800 West Hibiscus Boulevard, Suite 138

Melbourne, Florida 32901

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

Tallahassee, Florida 32301

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: 06-002905

Orders for Case No: 06-002905