STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK R. CONTE,

Petitioner,

vs.

C. J. FOOD MARTS, INC., Respondent.

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) Case No. 07-4875

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RECOMMENDED ORDER

This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on December 4, 2007, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: John Dennis Wiggins, pro se

C. J. Food Marts, Inc. 2200 West Highway 98

Mary Esther, Florida 32569 STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful employment practice.

PRELIMINARY STATEMENT

Petitioner Mark R. Conte (Mr. Conte) worked as a clerk and cashier at Respondent C. J. Food Marts, Inc. (Food Marts). In

an Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (Commission) on February 5, 2007, Mr. Conte claimed discrimination based on age and retaliation.

He stated that he was 78 years of age.

On August 7, 2007, the Commission issued its Determination: No Cause. Mr. Conte thereafter filed a Petition for Relief.

The Petition for Relief was transmitted to the Division of Administrative Hearings and filed on October 7, 2007.

An Initial Order was issued on October 25, 2007. Neither of the parties responded to the Initial Order. Accordingly, the hearing was set for December 4, 2007, in Tallahassee, Florida.

On December 4, 2007, a memorandum from Mr. Conte dated

December 3, 2007, was received that informed the Administrative Law Judge that Mr. Conte had a new job at Sears and would not appear. On December 4, 2007, Food Mart appeared in the person of John Dennis Wiggins, president, who brought with him five witnesses from the Mary Esther, Florida, area and one from Georgia.

At the time set for the hearing, Mr. Conte was not present.

The hearing was delayed for 15 minutes. At the end of the

15 minute delay, the hearing commenced in Mr. Conte's absence.

Mr. Conte, due to his absence, was unable to establish a prima facie case. Mr. Wiggins, nevertheless, elected to proceed with a view toward establishing that no adverse employment

action occurred with regard to Mr. Conte and that no retaliation occurred.

At the hearing, Food Mart called as witnesses: John Dennis Wiggins, Mark Carter, Melissa Cupp, Starr Mullens, and Norman Perry. Food Mart introduced no documents.

After the hearing, neither Petitioner nor Respondent filed proposed findings of fact and conclusions of law.

References to statutes are to Florida Statutes (2006)

unless otherwise noted.

FINDINGS OF FACT

1. Food Mart is a corporation owned by Mr. Wiggins and his wife Kimberly. Food Mart operated a convenience store located in Mary Esther, Florida. Exxon gasoline was sold there, along with food and other items found in convenience stores. At the time of the hearing, Food Mart was no longer in operation due to competition from a nearby Wal-Mart and a Tom Thumb Store.

2. No evidence was adduced that the operation ever employed as many as 15 people for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

3. Mr. Conte is a person who claims to be about 78 years of age. He was first employed at Food Mart in October 2005. He worked as a clerk and cashier. He was hired by the manager, Melissa Cupp.

4. Mr. Wiggins knew Mr. Conte because he maintained an office in the store where Mr. Conte worked and saw him on almost a daily basis. Mr. Wiggins did not know Mr. Conte's age.

   Mr. Wiggins considered Mr. Conte to be an "elderly gentleman." Mr. Wiggins treated Mr. Conte "like family," and hosted him at his home on Thanksgiving one year.

5. Mr. Conte had many activities that were important to him. Mr. Wiggins and Ms. Cupp arranged Mr. Conte's schedule so that he could attend activities that included Sons of Italy meetings. Mr. Conte has written a book and held book signings, and his schedule was arranged to allow for those events.

6. Mr. Wiggins never made disparaging remarks about

   
   

   Mr. Conte's age. It was Mr. Wiggins' practice to put birthday messages about his employees on the sign board beneath his Exxon sign. Mr. Conte requested that his name not go on the board on the occasion of his birthday and that request was honored.

7. Norman Perry worked at the store during times pertinent. Mr. Conte told him that he was going to file a complaint with the Commission regarding what he believed to be discrimination based on age. Mr. Perry told no one about

   Mr. Conte's plans until after a complaint was filed with the Commission. After Mr. Perry learned of the complaint filed with the Commission, he told Mr. Wiggins that Mr. Conte had told him of his plans. By that time, Mr. Conte had abandoned his job.

8. Mr. Perry is 66 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any age-related comments to Mr. Conte.

9. Alan Shaw worked at the store for five and one-half years, and those years encompassed all times pertinent to this case. Mr. Shaw is 72 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any

   age-related comments to Mr. Conte. He believed that Mr. Conte "had a chip on his shoulder."

10. Mr. Conte was treated like all other employees. Like other employees, he was given a raise after his sixth month of employment. He was eventually given a key to the premises. He abandoned his job without locking up one night in January 2007, and Mr. Wiggins had to go to the store to secure it.

11. Subsequently, Mr. Conte was not put on the work schedule. He was not put on the work scheduled because he never revealed his availability to the manager. He never contacted Mr. Wiggins subsequent to his departure from the store on the night he walked out without locking the premises.

12. Mr. Wiggins was unaware that Mr. Conte had planned to make a complaint to the Commission and, therefore, could not have retaliated against him.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has facial jurisdiction over the subject matter of and the parties to this proceeding. As will be discussed below, jurisdiction herein is exercised to the extent necessary to determine that the Commission has no jurisdiction over Food Mart. §§ 120.57(1) and 760.10(7) Fla. Stat.

14. Subsection 760.02(1), Florida Statutes, states that the "Florida Civil Rights Act of 1992" comprises Sections 760.01 through 760.11 and 509.092, Florida Statutes.

15. The Florida Civil Rights Act at Subsection 760.10(1), Florida Statutes, provides that it is an unlawful employment practice to discharge an individual because of the person's age. See Waterman v. Bershire Corporation, 20 FALR 1055, 1060, FCHR Case No. 93-D301, Final Order, dated June 16, 1997. The Commission has adopted the federal standards for allocation for burden of proof. See Cobb v. European Management Services, Inc., 19 FALR 4338, 4344 FCHR Case No. 92-6471, Final Order, dated November 30, 1995.

16. Mr. Conte has the ultimate burden of proving by a preponderance of the evidence that he was intentionally discriminated against because of his age.

17. The Florida Civil Rights Act, Section 760.01, et seq., is patterned after Title VII of the Federal Civil Rights Act, 42

    U.S.C. Section 2000E et seq. Federal case law interpreting Title VII and similar federal legislation is applicable to cases arising under the Florida Act. See Florida Department of

    Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).

18. Under Chapter 760, Florida Statutes, Mr. Conte meets the definition of "employee." Subsection 760.02(7), Florida Statutes states that "Employer" means ". . . any person employing 15 or more employees for each working day in each of

    20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person."

19. Because there is no evidence that Food Mart employed

    
    

    15 or more employees, Food Mart is not an employer under the statute. Accordingly, the Florida Civil Rights Act of 1992 does not apply to Food Mart.

20. Even if Food Mart was subject to the act and, therefore, subject to the jurisdiction of the Commission, there is no direct evidence of discrimination. Accordingly, if jurisdiction did exist, Mr. Conte would have to prove his case by indirect evidence.

21. To prove a case by indirect evidence, a charging party, Mr. Conte in this case, must prove disparate treatment. In order to do so, as the charging party, he bears the burden of

    proof established by the United States Supreme Court in McDonnell Douglas 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, the charging party bears the initial burden of establishing a prima facie case of discrimination.

22. Mr. Conte, because he failed to attend the hearing he requested, did not prove a prima facie case.

23. Even if there was jurisdiction, and even if he proved a prima facie case, there was ample evidence that no adverse employment actions occurred, no discrimination occurred, and that there was no retaliation.

24. Mr. Conte's complaint must be dismissed due to the absence of jurisdiction.

RECOMMENDATION

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

RECOMMENDED that the Petition of Mark R. Conte be dismissed.

DONE AND ENTERED this 21st day of December, 2007, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 21st day of December, 2007.

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: 07-004875

Orders for Case No: 07-004875