95-003990 Jorge V. Jimenex vs. Walt Disney World Company Status: Closed Recommended Order on Friday, April 19, 1996.

Summary: Petitioner failed to produce evidence of national origin discrimination; Employer's reason for termination not pretext.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE V. JIMENEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3990

) FCHR NO. 94-9329

WALT DISNEY WORLD COMPANY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division

of Administrative Hearings by its duly-designated Hearing Officer, Daniel M.

Kilbride, on February 29, 1996, in Orlando, Florida. The following appearances

were entered:

APPEARANCES

For Petitioner: Jorge V. Jimenez, pro se

2716 FDC Grove Road

Davenport, Florida 33837

For Respondent: Myrna L. Galligano, Esquire

Garwood, McKenna & McKenna, P.A.

731 North Garland Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner, a member of a protected class, was terminated from

his employment with the Respondent in the Hospitality Department at the Grand

Floridian Hotel on or about March 18, 1993 on the basis of his national origin

(Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida

Statutes (Supp. 1992).

PRELIMINARY STATEMENT

The Petitioner filed a complaint with the Florida Commission on Human

Relations (FCHR) on or about February 4, 1994 charging the Respondent with

employment discrimination under the Florida Civil Rights Act of 1992.

Subsequently, on or about April 5, 1995, a determination was issued by the FCHR.

The Petitioner timely requested a hearing and filed a Petition for Relief with

FCHR. This matter was referred by FCHR to the Division of Administrative

Hearings for formal hearing de novo on August 10, 1995. Following a continuance

in order to complete discovery, a formal hearing was held.

At the hearing, the Petitioner appeared pro se and testified in his own

behalf. Twenty-four (24) exhibits were received in evidence on behalf of the

Petitioner. The Respondent presented the testimony of two witnesses, and 21

exhibits were received in evidence. A transcript was ordered and received by

the Hearing Officer on March 18, 1996. The parties were allowed 20 days from

the filing of the transcript in which to file proposed findings of fact and

conclusions of law. The Petitioner has not filed proposed findings of fact as

of the date of this Recommended Order. The Respondent filed a proposed

recommended order on April 15, 1996. Specific rulings on the proposals are

contained in the Appendix attached to this Recommended Order.

Based upon all of the evidence, the following findings of fact are

determined:

FINDINGS OF FACT

1 The Respondent is an employer under the Florida Civil Rights Act of

1992.

2 The Petitioner was employed by the Respondent at its Grand Floridian

Hotel as a valet/greeter/bellman in the Hospitality Department during the

relevant period of time, including March of 1993.

3 The Petitioner is of Hispanic origin from the Dominican Republic and is

a member of a protected class.

4 In approximately October of 1988, the Petitioner began his employment

with the Respondent at the Contemporary Hotel as a valet/greeter.

5 In April of 1989, the Petitioner received a written reprimand for not

logging in a piece of luggage.

6 The Petitioner did not grieve the April 1988 written reprimand.

7 In May of 1989, the Petitioner transferred to the Respondent's Grand

Floridian Hotel, where he was a valet/greeter/bellman.

8 In February of 1990, the Petitioner received an oral reprimand for three

separate incidents of improperly logging luggage.

9. The Petitioner could not recall if he grieved the February, 1990 oral

reprimand.

10 In August of 1990, the Petitioner again received an oral reprimand,

this time for mixing up luggage while loading it into vehicles. The luggage had

to be mailed to each rightful owner at the Respondent's expense and caused an

inconvenience to the guests.

11 The Petitioner could not recall if he grieved the August 1990 oral

reprimand.

12 In December of 1991, the Petitioner mishandled luggage by failing to

tag all of a guest's bags.

13 In May of 1992, the Respondent's management discussed with the

Petitioner his failure to tag a piece of luggage.

14 In July of 1992, the Petitioner received a verbal reprimand for failing

to log in a guest's luggage.

15 The Petitioner's verbal reprimand in July of 1992 was the result of a

direct complaint by a guest, who was required to search for a piece of his own

luggage in the Hotel's storage room.

16 The Petitioner could not recall if he grieved the July 1992 verbal

reprimand.

17 In September of 1992, the Petitioner received a verbal reprimand for

approaching a guest to discuss splitting a tip with a bellman, an impermissible

practice. The Petitioner was not suspended for this incident.

18 In December of 1992, the Petitioner received a written reprimand for

failing to follow proper procedures regarding a guest's luggage on two separate

occasions.

19 The Petitioner did not grieve the December 1992 written reprimand.

20 The Respondent decided not to consider the two incidents in December of

the Petitioner's luggage-mishandling as separate incidents for progressive

discipline purposes, even though such action was permissible under the

collective bargaining agreement.

21 The Respondent's decision not to consider the two December 1992

incidents separately for progressive discipline purposes was based upon the

Petitioner's length of service and his good performance in other areas. The

Petitioner had a good attitude, had good people skills, and had received good

guest comments during the course of his employment.

22 In December of 1992, the Petitioner understood that he was in the

progressive discipline process.

23 In January of 1993, the Respondent met with the Petitioner and offered

to remove him from the responsibility of handling luggage by putting him in a

non-tipped, dispatcher position.

24 Also, in January of 1993, the Respondent and the Petitioner's union

representative were working together to preserve the Petitioner's job.

25 The Petitioner was reminded by his union representative about his

previous reprimands and that one more incident would cause his termination. The

Petitioner was told by his union representative that the purpose of moving him

to a dispatcher position was to get him away from the luggage-handling area.

The Petitioner was told that if he remained free of similar reprimands for one

year, he could return to the tipped position of valet/greeter with no loss of

seniority.

26 After initially refusing the dispatcher position, the Petitioner

accepted.

27 The Petitioner was given the shift that he requested when he was

transferred to the dispatcher position.

28 In February of 1993 while on duty as a dispatcher, the Petitioner

received a three-day suspension, without pay, for using poor judgment. He

interrupted a valet while the valet was servicing a guest.

29 The Petitioner did not grieve the February 1993 suspension.

30 The Petitioner's action as a dispatcher of interrupting a valet was

grounds for the valet to grieve such actions to the union.

31 The suspension in February of 1993 for the Petitioner's poor judgment

as a dispatcher was not the basis for his termination.

32 The Petitioner requested a reclassification back to

valet/greeter/bellman position. The Petitioner understood that one more

incident of any kind would result in his immediate termination.

33 The Petitioner requested the change from dispatcher back to

valet/greeter/bellman for personal financial reasons; and his union

representative also advised him that if one more incident of any kind occurred,

he would be terminated.

34 On March 16, 1993, the Petitioner mishandled luggage. The Petitioner

did not properly log in a guest's luggage (a garment bag).

35. The Petitioner was terminated on March 18, 1993 for poor job

performance.

36 The progressive discipline which the Petitioner received was consistent

with the union contract. The contract provides that an employee can be

terminated for the next offense following a single written reprimand.

37 The Petitioner had the opportunity to grieve all of the reprimands he

received, and his union representative was aware of the actions taken in

connection with the Petitioner's employment.

38 The Petitioner grieved his termination, and that grievance was denied.

39 The Petitioner failed to provide evidence of any similarly-situated

employee who was not terminated for mishandling luggage on as many occasions as

he had.

40 The Petitioner failed to provide evidence regarding any discrimination

against other Hispanic employees, other than his own belief, speculation or

conjecture.

41 The Petitioner understood that the Respondent's management was closely

checking into everyone's performance. Management asked all of the employees at

the Grand Floridian Hotel to help the Hotel earn a five-star rating.

42 The Petitioner was never part of the Respondent's management and did

not attend manager meetings.

43 During the course of his employment, the Petitioner was chosen to train

other employees because he knew the proper procedures for his

valet/bellman/greeter position.

44 The Petitioner knew the proper procedures for handling luggage received

from guests.

45 The Petitioner knew the proper procedures for logging in and handling

bags.

46 The Petitioner received copies of the Respondent's policies and

procedures for a valet/bellman, including luggage handling.

47. The Petitioner did not report many of the alleged discriminatory

actions of his co-workers to management. The Petitioner conceded that on those

occasions when he did make reports to management, these alleged actions stopped.

48. The Petitioner received the overtime and schedules which he requested

because of his seniority.

49. The number of minorities employed at the Respondent's Orlando,

Florida, work site has increased from 1993 to 1996.

50. The number of minorities employed at the Respondent's Grand Floridian

Hotel has either remained the same or increased from 1992 to 1995.

51. In January of 1993, the number of minorities in the Grand Floridian

Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were

four Hispanics in the valet/greeter classification.

52. In February of 1996, the number of minorities in the Grand Floridian

Hotel's Hospitality Department (including valets, bellmen, greeters and

dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in

the valet/greeter classification.

53. The Petitioner failed to produce any evidence of an overall plan by

the Respondent's management to eliminate minorities, including Hispanics, from

employment at the company.

54. The Respondent allows employees to review their employment records at

any time upon request.

55. The Petitioner presented only his own beliefs, speculation or

conjecture as a basis for his claims of national origin discrimination.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto, pursuant to

Subsection 120.57(1), Florida Statutes, and Rule 60Y-4.016(1), Florida

Administrative Code.

57. The State of Florida, under the legislative scheme contained in

Chapter 760, Florida Statutes, incorporates and adopts the legal principles and

precedents established in the federal anti-discrimination laws, specifically set

forth under Title VII of the Civil Rights Act of 1964, as amended. 42 USC

Section 2000e, et seq. The Florida law prohibiting unlawful employment

practices is found in Section 760.10, Florida Statutes. This section prohibits

discharge or other discrimination against any individual with respect to

compensation, terms, conditions, or privileges of employment because of such

individual's national origin. (Section 760.10(1)(a), Florida Statutes.) The

FCHR and the Florida courts, interpreting the provisions of the Florida Civil

Rights Act of 1992, have determined that federal discrimination law should be

used as guidance when construing provisions of the Act. See, Brand v. Florida

Power Corp. 633 So.2d 504, 509 (Fla. 1st DCA 1994); Florida Department of

Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); Cooper v.

Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).

58. The Supreme Court established, and later clarified, the burden of

proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981) and again in the recent case of St. Mary's Honor Center v. Hicks, 509

U.S. __, 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model.

Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell

Douglas places upon the Petitioner the initial burden of proving a prima facie

case of racial discrimination. See, also, Laroche v. Department of Labor and

Employment Security, 13 FALR 4121 (FCHR 1991); Davis v. Humana of Florida, Inc.,

15 FALR 231 (FCHR 1992).

59. Judicial authorities have established the burden of proof for

establishing a prima facie case of discriminatory treatment. The Petitioner

must show that:

a. The Petitioner is a member of a

protected class;

b. The employee is qualified to remain

in his position;

c. The employee was subject to an adverse

employment decision (the Petitioner was terminated);

d. The position was filled by a white person

or other non-protected employees similarly

situated with comparable work performance were

not terminated; and

e. There must be shown by the evidence that

there is a causal connection between a. and c.

Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139

(11th Cir. 1983); Smith v. Georgia, 684 F.2d 729,

29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell

County Board of Education, 684 F.2d 769, 29 FEP

Cases 1508 (11th Cir. 1982), appeal after remand,

744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

60 Proving a prima facie case serves to eliminate the most common

nondiscriminatory reasons for the Plaintiff's disparate treatment. See,

Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the

equivalent of a factual finding of discrimination. It is simply proof of

actions taken by the employer from which discriminatory animus is inferred

because experience has proved that, in the absence of any other explanation, it

is more likely than not that those actions were bottomed on impermissible

considerations. The presumption is that more often than not people do not act

in a totally arbitrary manner, without any underlying reason, in a business

setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

61 Once a plaintiff has succeeded in proving all the elements necessary to

establish a prima facie case, the employer must then articulate some legitimate,

nondiscriminatory reason for the challenged employment decision. The employer

is required only "to produce admissible evidence which would allow the trier of

fact to conclude that the employment decision had not been motivated by

discriminatory animus." Texas Department of Community Affairs v. Burdine, at

257. The employer "need not persuade the court that it was actually motivated

by the proffered reasons . . . it is sufficient if the [employer's] evidence

raises a genuine issue of fact as to whether it discriminated against the

Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

62 Once the employer articulates a legitimate reason for the action taken,

the evidentiary burden shifts back to the Petitioner, who must prove that the

reason offered by the employer for its decision is not the true reason but is

merely a pretext. The employer need not prove that it was actually motivated by

the articulated nondiscriminatory reasons or that the replacement was more

qualified than the Petitioner. Texas Department of Community Affairs v.

Burdine, at 257-8.

63 In Burdine, the Supreme Court emphasized that the ultimate burden of

persuading the trier of fact that the Respondent intentionally discriminated

against the Petitioner remains at all times with the Petitioner. Texas

Department of Community Affairs v. Burdine, at 253. The Court confirmed this

principle again in St. Mary's Honor Center v. Hicks, 509 U.S.__, 113 S.Ct. 2742

(1993).

64. In the case sub judice, the Petitioner has established that he is of

Hispanic (Dominican Republic) origin and a member of a protected class. The

Petitioner made an initial showing that he was qualified to remain in the

position. The Petitioner has also established that he was subjected to an

adverse employment decision (he was terminated). The Petitioner has failed to

demonstrate either that the position was filled by a white person or that other

non-protected employees were not terminated for similar work rules violations.

Therefore, the Petitioner failed to come forward with sufficient evidence to

meet his initial burden of proof on the issue of national origin discrimination

65. Assuming that the Petitioner met his initial burden, the sequence of

presentation of evidence then required the Respondent to come forward and

"articulate" valid, nondiscriminatory reasons for the resulting termination of

employment decision. The Respondent has done so.

66. While the Petitioner is a minority who was terminated from his

position, he was not performing in his position to the legitimate expectations

and requirements of his employer, i.e., he was not qualified to remain in his

position. In addition, the Petitioner failed to provide any evidence of other

non-protected employees similarly situated with comparable work performances who

were not terminated.

67. The Respondent established by a preponderance of the evidence that

despite the Petitioner's congenial and personable manner, the Petitioner had a

history of mishandling guest luggage. This can be considered poor job

performance. The Petitioner mishandled luggage throughout his employment even

though the various incidents of mishandling were eliminated one year from their

occurrence, pursuant to the terms of the collective bargaining agreement between

the Respondent and the Petitioner's union.

68. Pursuant to the collective bargaining agreement, the Respondent placed

the Petitioner in the progressive discipline process in approximately July of

1992. At that time, the Petitioner was given a verbal reprimand for job

performance when he failed to log in a guest's luggage during check-in.

Contrary to the Petitioner's claims of national origin discrimination by the

Respondent, the discipline given to him on this occasion was the result of a

direct report by a guest. The guest noted on a card that the Petitioner failed

to log in his luggage which resulted in the guest having to retrieve his own

luggage from the storage area. Clearly, there was no discrimination by the

Respondent because of the Petitioner's national origin when the source of the

information was a guest, and the Respondent was simply responding to the

complaint with the appropriate discipline allowed under the collective

bargaining agreement.

69. In December of 1992, on two separate occasions, the Petitioner again

mishandled luggage. In accordance with the collective bargaining agreement, the

Respondent could have treated these two incidents separately and terminated the

Petitioner. The Respondent decided to consolidate these two incidents of

luggage mishandling and issue only one written reprimand, thus, saving the

Petitioner from termination. Here again, there is no evidence of discrimination

by the Respondent.

70. Finally, in January of 1993, the Respondent, together with the

Petitioner's union representative, met with the Petitioner and proposed a plan

to remove the Petitioner from the troublesome area of luggage mishandling and

into a dispatcher's position. In this non-tipped dispatcher position, the

Petitioner would have an opportunity to clear his record for one year and then

return to a tipped position, with no loss in seniority or benefits. This plan

was done in deference to the Petitioner's employment record and in another

attempt to save him from termination. Respondent's efforts do not evince

discrimination.

71. In his new position as dispatcher, however, the Petitioner again

received a written reprimand, this time for interrupting a fellow worker in the

performance of his duties.

72. It was the Petitioner who requested a transfer back to the

valet/bellman/greeter position. He had a clear understanding that another

incident of any type would result in his immediate termination. Based upon this

understanding, the Respondent accommodated the Petitioner's wishes and

transferred him back into a tipped position on the exact shift requested by the

Petitioner. Once again, there is no evidence of discrimination by the

Respondent against the Petitioner based upon his national origin. There is

evidence of Respondent's repeated efforts to maintain the Petitioner's

employment despite his continued poor job performance.

73. Notwithstanding the Respondent's efforts, the Petitioner again

mishandled luggage shortly after being transferred back to the

valet/bellman/greeter position. An investigation clearly showed that the

Petitioner failed to log in a hanging bag, which was the fifth piece of a

guest's luggage. During the investigation of this incident, the Petitioner

acknowledged that this guest may have had a hanging bag.

74. No evidence was presented to show discrimination against the

Petitioner in the Respondent's decision to terminate him. The Respondent's

legitimate, non-discriminatory reason for terminating the Petitioner was his

poor job performance, specifically, his consistent mishandling of luggage.

75. In addition, there was no evidence to support the Petitioner's claim

of a company-wide plan to terminate minorities, Hispanics in particular, from

the Respondent's employ. In addition, the Petitioner failed to produce any

evidence of similarly-situated, non-minority individuals who were not terminated

after mishandling luggage as many times as the Petitioner.

76. The Petitioner has failed to produce any evidence to demonstrate that

the Respondent's articulated reasons for its actions in March of 1993 were

"pretextual".

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which denies the Petition for Relief.

DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County,

Florida.

___________________________________

DANIEL M. KILBRIDE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990

The following constitute my specific rulings, in accordance with Section

120.59, Florida Statutes, on findings of fact submitted by the parties.

The Petitioner did not submit proposed findings of fact.

Proposed findings of fact submitted by the Respondent:

Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61.

Rejected as irrelevant, immaterial or as comment on the evidence:

paragraphs 21, 32, 40.

COPIES FURNISHED:

Mr. Jorge V. Jimenez

2716 FDC Grove Road

Davenport, Florida 33837

Myrna L. Galligano, Esquire

Garwood, McKenna & McKenna, P.A.

731 North Garland Avenue

Orlando, Florida 32801

Dana C. Baird, General Counsel

Florida Commission on

Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk

Florida Commission on

Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

Final Order in this case concerning their rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.