STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing in this proceeding by teleconference for the Division of Administrative Hearings (DOAH) on October 13, 2009, in Tampa, Florida.

APPEARANCES

For Petitioner Maia Fischer:

Maia Fischer, pro se 2302 48th Avenue West Bradenton, Florida 34207

For Petitioner Hillsborough County Office of the County Administrator:

(No appearance) For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Hillsborough County Human Rights Board (the Board) on July 13, 2008. The Board completed the investigation of the allegations in the Charge on June 17, 2009, and issued a determination that cause existed to believe the alleged discrimination occurred.

Pursuant to Hillsborough County Human Rights Ordinance 00-37, the matter was referred to DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified. No other evidence was submitted for admission into evidence by either party.

The Board ordered a Transcript of the hearing, which was filed with DOAH on November 6, 2009. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board

   alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy.

2. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business.

3. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers.

4. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period.

5. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008.

6. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow.

7. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment.

8. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained

   to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment.

9. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00.

10. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of

    $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of

    $1,600.00 for all eight sales.

    
    

11. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1),

    Fla. Stat. (2009). The parties received adequate notice of the administrative hearing.

13. Petitioner bears the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that Respondent intentionally discriminated against her on the basis of her gender or retaliated against her because of a protected activity. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000).

14. The burden of proving retaliation follows the general rules enunciated for proving discrimination. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Federal discrimination law may be used for guidance in evaluating the Charge filed by Petitioner. Tourville v. Securex, Inc., 769 So. 2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Elec. Co-op. Inc., 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).

15. Petitioner can meet her burden of proof with either direct or circumstantial evidence. Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999), cert. denied, 529 U.S. 1109 (2000). Direct evidence must evince discrimination or retaliation without the need for inference or presumption. Standard v. A.B.E.L. Services., Inc.,

    161 F.3d 1318, 1330 (11th Cir. 1998). In other words, direct evidence consists of "only the most blatant remarks, whose

    intent could be nothing other than to discriminate." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). By analogy, direct evidence of retaliation must be equally egregious.

16. There is no direct evidence of discrimination or retaliation in this case. In the absence of direct evidence, Petitioner must meet her burden of proof by circumstantial evidence.

17. Circumstantial evidence of discrimination or retaliation is subject to the burden-shifting framework of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

    93 S. Ct. 1817 (1973); Reed, 95 F.3d at 1178. Petitioner must first establish a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802; Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1345 (11th Cir. 2000). If Petitioner fails to make a prima facie case, the inquiry ends. See Ratliff v. State, 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).

18. A preponderance of evidence establishes a prima facie

    
    

    case of discrimination. A preponderance of the evidence shows that Petitioner is a member of a protected class, that she suffered an adverse employment action, that she received disparate treatment compared to similarly-situated individuals

    in a non-protected class, and that there is sufficient evidence of bias to infer a causal connection between her gender and the disparate treatment. Rosenbaum v. Southern Manatee Fire and Rescue Dist., 980 F. Supp. 1469 (M.D. Fla. 1997); Andrade v.

    Morse Operations, Inc., 946 F. Supp. 979, 984 (M.D. Fla. 1996). Petitioner’s testimony was credible and persuasive.

19. Once Petitioner establishes a prima facie case of discrimination, the burden shifts to Respondent to articulate a legitimate, non-discriminatory, non-retaliatory reason for the challenged action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S. Ct. 1089, 1096 (1981); Munoz,

223 F.3d at 1345; Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998), cert. denied, 119 S. Ct. 405 (1998). Respondent failed to appear and articulate any legitimate reason for its actions.

RECOMMENDATION

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

RECOMMENDED that the final order issued in this proceeding should find that Respondent is guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation.

DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2009.

COPIES FURNISHED:

Maia Fischer

2302 48th Avenue West Bradenton, Florida 34207

Camille Blake, EEO Manager Hillsborough County

Post Office Box 1110 Tampa, Florida 33601-1101

John Disbrow ADCO Printing

8412 Sabal Industrial Boulevard Tampa, Florida 33619

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: 09-003406

Orders for Case No: 09-003406