00-003912 Cozettee G. Blackmon vs. Sandestin Resort And Club, Inc. Status: Closed Recommended Order on Friday, January 12, 2001.

Summary: No evidence of age, race, or gender discrimination where employee was fired for violating employer`s attendance policy; no evidence of retaliation where employer not aware of discrimination claim until after employee was terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COZETTEE G. BLACKMON, )

)

Petitioner, )

)

vs. ) Case No. 00-3912

)

SANDESTIN RESORT AND CLUB, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 4,

2000, in Destin, Florida, and on December 11, 2000, by telephone

conference, before the Division of Administrative Hearings, by

its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Janice R. Cunningham

Qualified Representative

Post Office Box 1002

Fort Walton Beach, Florida 32549

For Respondent: Bruce Anderson, Esquire

William Krizner, Esquire

Collins & Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Petitioner's

April 27, 1998, Charge of Discrimination states a cognizable

claim under Sections 760.01 - 760.11 and 509.092, Florida

Statutes; and if so (b) whether Respondent committed an unlawful

employment act by discriminating against Petitioner on the basis

of age, race, and/or gender.

PRELIMINARY STATEMENT

On or about July 21, 1997, Petitio ner Cozettee G. Blackmon

(Petitioner) filed a complaint with the Florida Commission on

Human Relations (FCHR) regarding alleged age and race

discrimination by Respondent Sandestin Beach Resort and Club,

Inc. (Respondent). Among other things, Petitioner alleged that

Respondent failed to promote Petitioner in April 1997, hiring

instead a younger white male for the position of Chef Tourant.

FCHR assigned this matter FCHR Case No. 97-2286 and referred the

case to an intake counselor. FCHR did not notify Respondent

about Petitioner's allegations at this time.

On April 24, 1998, Petitioner filed an amended Charge of

Discrimination with FCHR. Said charge alleged that Respondent

had discriminated against Petitioner based on age and race. It

also alleged that Respondent had retaliated against Petitioner

by firing her after she filed her initial complaint in July

1997.

FCHR sent Respondent a Notice of Charge of Discrimination

dated May 28, 1998. This notice informed Respondent for the

first time about Petitioner's allegations. The notice stated

that the alleged discrimination was based on race, age, and

gender.

On April 17, 2000, FCHR issued a Determination: No Cause in

this matter. A Notice of Determination: No Cause dated

April 17, 2000, advised Petitioner that she could request an

administrative hearing by filing a Petition for Relief within 35

days of the date of the notice.

By letter dated May 9, 2000, Petitioner's attorney, Almeta

A. Johnson, Esquire, requested a copy of Petitioner's FCHR file.

According to the letter, Ms. Johnson wanted to review the file

before advising Petitioner relative to the merits of her claim.

FCHR did not respond to this request until after the deadline to

file a Petition for Relief had passed.

On May 31, 2000, FCHR issued a Notice of Dismissal. FCHR

dismissed FCHR Case No. 97-2286 because Petitioner failed to

timely file a Petition for Relief.

By letter dated June 13, 2000, FCHR informed Petitioner of

the cost involved in copying her FCHR file.

By letter dated June 27, 2 000, Petitioner's counsel,

Almeta A. Johnson, Esquire, requested an extension of time in

which to review Petitioner's FCHR file. Ms. Johnson enclosed a

check to cover the cost of obtaining a copy of the file.

On August 11, 2000, FCHR issued a Recession o f Notice of

Dismissal Order Granting Extension of Time. FCHR found that

Petitioner had acted in a diligent manner in prosecuting the

case. FCHR also found no indication that Petitioner had delayed

the case intentionally or negligently. FCHR reopened this case

and granted Petitioner an additional 35 days in which to file a

Petition for Relief.

On September 18, 2000, Petitioner filed her Petition for

Relief with FCHR.

On September 20, 2000, FCHR issued a Notice to Respondent

of Filing of Petition for Relief from an Unlawful Employment

Practice. The following day, FCHR referred the case to the

Division of Administrative Hearings.

On September 26, 2000, the Division of Administrative

Hearings issued a Revised Initial Order. Subsequently, the

undersigned issued a Notice of Hearing dated October 5, 2000,

scheduling the case for hearing on November 9, 2000.

On November 7, 2000, Petitioner's counsel filed a Motion

for Continuance. The motion stated that Petitioner's counsel

did not receive a copy of the Notice of Hearing until

November 3, 2000. After conducting a telephone conference, the

undersigned issued an Order Granting Continuance and Re-

Scheduling Hearing. Said order scheduled the hearing for

December 4, 2000.

On November 20, 2000, Respondent file d an Emergency Motion

for Summary Order Dismissing Petition for Relief. Said motion

argued that FCHR violated Section 760.11(7), Florida Statutes,

when it issued the Recession of Notice of Dismissal Order

Granting Extension of Time. The motion also argued that

Petitioner failed to file her Petition for Relief within 35 days

of the date of the order granting additional time.

By order dated November 22, 2000, the undersigned denied

Respondent's motion for dismissal relating to FCHR's issuance of

the Recession of Notice of Dismissal Order Granting Extension of

Time. The undersigned ruled that Respondent could present

evidence at hearing regarding the date that the Petition for

Relief was filed with FCHR.

On November 27, 2000, Almeta A. Johnson, Esquire, fil ed a

Motion to Withdraw as Counsel of Record for Petitioner. The

undersigned granted this order on November 28, 2000.

On November 28, 2000, Janice R. Cunningham, as Petitioner's

Qualified Representative, filed the following: (a) Designation

of Representative; (b) Unopposed Motion to Appear by Phone; and

(c) Motion for Continuance. On November 29, 2000, Respondent

filed a response in opposition to the Motion for Continuance. A

November 29, 2000, order granted Petitioner's request to present

testimony by telephone but denied her request for a continuance.

On November 30, 2000, Respondent filed an Emergency Motion

to Dismiss Petitioner's Appeal, or in the Alternative, to

Exclude Exhibits and Witnesses. This motion was denied as a

preliminary matter at hearing. Respondent was given the

opportunity to examine Petitioner's witnesses prior to their

testimony at hearing.

As a preliminary matter at hearing, Respondent filed its

Second Motion for Summary Order Dismissing Petition for Relief.

According to the motion, Petitioner's pre-hearing stipulation

admitted that there were no disputed material facts, making a

formal hearing unnecessary. The undersigned reserved ruling on

this motion. For the reasons set forth below, the motion is

denied.

During the hear ing on December 4, 2000, Petitioner

testified on her own behalf and presented the testimony of four

witnesses. Petitioner submitted no exhibits for admission into

evidence.

Respondent presented the testimony of two witnesses during

the hearing on December 4, 2000. Respondent offered two

composite exhibits which were accepted into evidence.

The hearing concluded in a telephone conference on

December 11, 2000. Petitioner presented the testimony of one

witness by telephone.

The Transcript of the Decembe r 4, 2000, proceeding was

filed on December 18, 2000. The Transcript of the December 11,

2000, proceeding was filed on December 19, 2000.

On December 19, 2000, Respondent filed a Disclosure of

Exhibits, consisting of eleven documents. These documents were

referenced during the telephone testimony on December 11, 2000.

Respondent filed its Proposed Recommended Order on

December 29, 2000. Petitioner filed her untimely Proposed

Recommended Order on January 2, 2001.

FINDINGS OF FACT

1. Petitioner is a black female who is over 60 years old.

According to her 1992 résumé, she earned a general education

diploma at Haney Vocational Technical Center, in Bay County,

Florida in 1981. Petitioner's résumé states that between 1981

and 1984, she completed thirty semester hours in hotel/motel

restaurant management at Gulf Coast Community College, in Bay

County, Florida.

2. At the hearing, Petitioner testified that she was

certified as a working chef by the American Culinary Federation

with a degree from the University of Michigan in hospitality

management. However, Petitioner did not refer to the American

Culinary Federation or list a graduate degree on the résumé that

she furnished to Respondent in 1992. Petitioner's testimony is

not credible.

3. Petitioner's 1992 résumé includes the following

professional training and certifications: (a) 1969, United

States Air Force sanitation certificate; (b) 1986, State of

Florida sanitation certificate; (c) 1981, National Cooking

Institute, Denver, Colorado, for 360 hours in a culinary arts

skills program, receiving an outstanding performance award for

contribution in support of United States Air Force food service,

catering, and special functions; (d) 1981, American Hotel/Motel

Association certification for a course in introduction to

hospitality industry and food and beverage control; (e) 1987,

certificate of achievement for the United States Air Force

Culinary Arts Upgrade Training for Managers and Supervisors, a

260-hour workshop at Randolph Air Force Base in Texas; and

(f) 1988, a nutrition certificate for a 450-hour workshop at the

Culinary Arts School in St. Augustine, Florida.

4. Petitioner's 1992 resume includes the following work

experience: (a) 1969-1975, service supervisor at a local

restaurant in Panama City, Florida; (b) 1969-1985, full-time

party chef and kitchen manager at Tyndall Air Force Base Non-

Commissioned Officer's Club; (c) 1982-1992, part-time kitchen

manager and food production specialist at Haney Vocational

Technical Center, in Bay County, Florida, including working as

an assistant instructor; and (d) 1985-1992, full-time

kitchen/dining room manager and executive chef at Tyndall Air

Force Base Officer's Club.

5. Respondent is a hospitality company that provides

upscale accommodation and fine cuisine to its guests.

6. Respondent gives its employees a copy of its

comprehensive employee handbook when they are hired. New

employees are required to sign an acknowledgement that they

agree to read and abide by the rules and regulations contained

therein. Petitioner signed the acknowledgment that she had

received and would abide by the rules set forth in the employee

handbook on May 12, 1992.

7. The employee handbook contains a complaint procedure.

Employees are encouraged to report any job-related problems,

including discrimination or harassment, to their supervisor and

up the chain of command if the supervisor is part of the

problem.

8. The employee handbook sets forth rules of conduct and a

three-step progressive disciplinary procedure that applies

except in certain circumstances. The first time an employee

violates a rule, the employee receives an oral reprimand. The

second rule violation results in a written final warning

regarding the behavior. Respondent terminates an employee for a

third violation of a rule.

9. The employee handbook requires employees to call their

supervisor when they find it necessary to be absent from work

due to illness, or other emergencies. This call to the

supervisor must be made no later than one hour before a

scheduled time to start work. Violation of this rule may result

in immediate termination of employment without resort to the

three-step disciplinary procedure.

10. In 1996, Respondent amended its personnel procedures.

The new policy regarding sick and personal leave was attached to

employees' paychecks. The new policy required employees to

request non-emergency personal or sick leave in writing ten days

in advance. The request form was to be submitted directly to

the employees' supervisors. Respondent knew about this policy

and complied with it when she had surgery.

11. Respondent hired Petitioner as a cook in the banquet

kitchen effective May 14, 1992.

12. On June 2, 1992, Respondent transferred Petitioner to

the kitchen in Respondent's Sunset Bay facility.

13. On April 1, 1993, Respondent transferred Petitioner

back to the banquet kitchen as lead pantry cook. She usually

worked the breakfast shift. Her principal duties involved

preparation of cold foods.

14. Chris Chirum was Respondent's Executive Chef of the

Resort in April 1997 and at all times material here. Michael

Kulow, Respondent's Director of Food and Beverage, was Chef

Chirum's supervisor.

15. Chef Chirum supervised an Executive Sous Chef, a

Banquet Chef also known as Chef Tourant, and various restaurant

chefs/managers and/or cooks, including Petitioner. Chef Chirum

encouraged all of his subordinates to adhere strictly to

Respondent's attendance policies. He urged them to call him

directly at work or home when they would not be able to make a

scheduled shift. This enabled Chef Chirum to ensure that the

kitchens were always properly staffed.

16. When a position of employment becomes available,

Respondent's Human Resources Department publishes the vacancy in

a company newsletter. Respondent's policy is to hire qualified

applicants from within the organization if possible. If

Respondent does not receive an application from a qualified in-

house applicant, Respondent advertises job vacancies in

newspapers and accepts outside applications. The company

newsletter is available in the personnel office for walk-in

applicants to review. Once the Human Resources Department

receives an application, it is sent to the appropriate

department head for further consideration.

17. In April 1997, Wayne Edwards, applied for a vacant

position as Chef Tourant. 1 Mr. Edwards had not previously been

employed by Respondent, but he had excellent credentials as a

Chef. Mr. Edwards graduated from the University of Kansas with

a graduate degree in business. He also completed a three-year

degree program in hospitality management at a community college

in Kansas. He was certified as a working chef by the American

Culinary Federation, receiving Chapter Chef of the Year in

Huntsville, Alabama. Mr. Edward's work experience includes the

following: (a) 1990-1991, food and beverage director for a

Hilton hotel; (b) 1992-1993, food and beverage director for a

Marriott hotel; (c) 1994, food and beverage supervision for

banquets and culinary a la carte at a Holiday Inn hotel; and

(d) 1995-1997, owner/operator of a sports bar.

18. Petitioner discussed her interest in applying for the

position of Chef Tourant with Michael Kulow in April 1997. He

did not encourage her to apply for the job but told her to file

an application.

19. Petitioner went to the personnel office and picked up

an application. Her testimony that she completed the

application and submitted it to Respondent's Human Resources

Department is not persuasive. The record does not contain a

copy of Petitioner's application for the position of Chef

Tourant.

20. Michael Kulow, in conjunction with Chef Chirum,

usually made the hiring decisions for kitchen employment

positions. In this case, Michael Kulow decided to hire Wayne

Edwards as Chef Tourant. Chef Chirum agreed with Michael Kulow

that Mr. Edwards was more than qualified for the position of

Chef Tourant. Chef Chirum was not aware that Petitioner was

interested in the job.

21. Chef Chirum provided persuasive testimony at the

hearing that Petitioner did not have the educational background

or work experience that Mr. Edwards possessed. Competent

evidence indicates that Respondent would have hired Mr. Edwards

as Chef Tourant even if Petitioner had followed the correct

procedure and submitted an application for the position.

22. On July 21, 1997, Petitioner filed a complaint with

FCHR alleging age and race discrimination based on Respondent's

failure to promote her to Chef Tourant. FCHR did not provide

Respondent with a notice of this complaint until May 1998.

23. On August 8, 1997, Chef Chirum gave Petitioner a

verbal warning for being absent during a scheduled shift. He

explained to her the importance of following the policies set

out in the employee handbook relative to attendance. He

explained the disciplinary procedure. Petitioner signed the

Employee Communication Notice but indicated that she did not

agree with it.

24. On November 24, 1997, Chef Chirum gave Petitioner a

final written warning for an unexcused absence. Petitioner was

scheduled to work the morning shift and never showed up.

Petitioner claimed that she had requested the day off. However,

Petitioner had not submitted the proper paperwork in a timely

manner for requesting non-emergency personal/sick leave.

Petitioner was or should have been aware that any further

violation of the attendance policy might result in termination

of her employment.

25. On December 13, 1997, Chef Chirum set up a television

in the banquet kitchen. He wanted to watch the score of a

football game with the sound muted on the set. Petitioner

became upset when she realized that Chef Chirum had the

television in the kitchen because she had not been allowed to

have a radio on while she worked. Chef Chirum attempted to

explain that, unlike the radio, the muted television did not

interrupt essential communications in the kitchen. Petitioner

continued to argue, raising her voice.

26. Chef Chirum spoke to Petitioner in his office. He

told her to take the rest of the day off so she could calm down.

Before she clocked out, Petitioner asked Chef Chirum if she

should work the next day. He responded that she should because

she was scheduled.

27. On the evening of December 13, 1997, Petitioner called

Jo Ann Thigpen, one of the banquet servers, at work. Petitioner

told Ms. Thigpen that she would not be coming in to work the

next day because she had experienced an anxiety attack.

Petitioner asked Ms. Thigpen to relay the message to her boss.

Ms. Thigpen gave Executive Sous Chef, Chris Anglin, Petitioner's

message that night. Petitioner should have contacted her

supervisor directly instead of delivering the message through

another employee. December 13, 1997, was Petitioner's last day

at work.

28. December 14, 1997, was a Sunday. Petitioner usually

had the day off on Sunday. However, she had volunteered to work

on the 14th and had been scheduled to do so. On the morning of

December 14, 1997, Petitioner called the banquet kitchen and

talked to Carol Ann Ernest, who worked next to Petitioner in the

banquet kitchen. Petitioner asked Ms. Ernest to tell Chef

Chirum that she would not be in to work that day. Ms. Ernest

delivered the message a few minutes later when Chef Chirum

called the kitchen. Petitioner should have called Chef Chirum

at home or left a message on his voice mail instead of giving

the message to a co-worker.

29. Petitioner did not show up for scheduled work or call

Chef Chirum on Monday, December 15, 1997. Petitioner was not

scheduled to work on Tuesday, December 16, 1997. She did not

show up for scheduled work or call Chef Chirum on Wednesday,

December 17, 1997.

30. On December 17, 1997, Petitioner went in to

Respondent's Human Resources Department to talk with Sylvia

Hanks, Respondent's Vice President of Human Resources.

Petitioner told Ms. Hanks why she became upset and left work on

December 13, 1997. Petitioner explained to Ms. Hanks that she

was under a lot of stress in her work environment. Petitioner

claimed that Wayne Edwards and other employees in positions of

authority had been rude and threatening to her.

31. At the time of the meeting on December 17, 1997, Ms.

Hanks was not aware that Petitioner had filed a race or age

discrimination claim on July 21, 1997. 2 Petitioner did not raise

the issue directly with Ms. Hanks. Instead, Petitioner

requested a three to four-week leave of absence. Ms. Hanks gave

Petitioner a leave of absence form and encouraged her to

complete the form and return it to the Human Resource

Department. Petitioner never returned the completed form.

32. After meeting with Petitioner on December 17, 1997,

Ms. Hanks investigated Petitioner's allegations regarding the

incident on December 13, 1997, and her allegations of unfair

treatment. Ms. Hanks was unable to verify Petitioner's

allegations. Ms. Hanks did not attempt to contact Petitioner

after completing her investigation because she agreed with Chef

Chirum's decision to terminate Petitioner for violation of

Respondent's attendance policy.

33. Sometime during the workweek beginning December 15,

1997, Petitioner's attorney contacted Ms. Hanks. The attorney

informed Ms. Hanks that she knew Respondent would do the right

thing for Petitioner. The attorney never mentioned Petitioner's

pending claim of age or race discrimination against Respondent

or that Petitioner had filed a Charge of Discrimination with

FCHR.

34. Respondent subsequently terminated Petitioner's

employment, effective December 13, 1997, for failure to comply

with the attendance policy. When Chef Chirum made the decision

to fire Petitioner, he was not aware of her pending claim of age

or race discrimination. There is no persuasive evidence that

Petitioner's termination was in retaliation for filing a

discrimination claim with FCHR.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 760.11(7), Florida

Statutes.

36. Respondent continues to argue that FCHR was without

jurisdiction to issue the August 11, 2000, Rescission of Notice

of Dismissal Order Granting Extension of Time. According to

Respondent, Petitioner did not file a Petition for Relief within

35 days of the issuance of the Notice of Determination:

No Cause, as required by Section 760.11(7), Florida Statutes,

and did not request an extension of time in which to file a

Petition for Relief within 30 days after issuance of the Notice

of Determination: No Cause as required by Rule 60Y-5.008(2),

Florida Administrative Code.

37. Respondent's argument overlooks the fact that

Petitioner's attorney requested a copy of her FCHR file by

letter dated May 9, 2000, 13 days before expiration of the 35-

day time frame set forth in Section 760.11(7), Florida Statutes.

The attorney made this request in order to advise Petitioner as

to the merits of filing a Petition for Relief. FCHR issued the

May 31, 2000, Notice of Dismissal while the attorney was waiting

for a response from FCHR. FCHR did not respond to Petitioner's

request until June 13, 2000, and only then by advising her of

the cost involved in furnishing the requested documents.

Petitioner's counsel sent FCHR a second letter dated June 27,

2000, requesting an extension of time and enclosing a check for

the requested documents. Under these circumstances, FCHR did

not abuse its discretion in deeming the letter dated May 9,

2000, as a timely request for an extension of time in which to

file the Petition for Relief. The record supports FCHR's

determination that Petitioner did not intentionally or

negligently delay the case.

38. Respondent also argues that Petitioner's Unaccompanied

Pre-hearing Stipulation, as originally filed and as amended,

admitted there were no disputed material facts, eliminating the

need for a formal hearing. It is true that paragraph (e) of

Petitioner's stipulations repeated verbatim the facts as stated

in paragraph (e) of Respondent's Unaccompanied Pre-hearing

Stipulation. However, review of the parties' unilateral pre-

hearing stipulations in their entirety and based on argument

during the hearing, it is clear that Petitioner did not intend

to admit the facts as stated by Respondent. Petitioner's

Qualified Representative obviously typed the facts in paragraph

(e) without reading them or without understanding that she was

adopting Respondent's position on the merits of the case.

Accordingly, Respondent's Second Motion for Summary Order

Dismissing Petition for Relief is denied.

39. Under Sections 760.10(1)(a) and 760.10(7), Florida

Statutes, it is unlawful for an employer to discriminate against

an employee based on age, race, or gender, or to retaliate

against an employee for filing a charge of discrimination.

40. In order to sustain her claim of age, race, and gender

discrimination based on a failure to promote, Petitioner must

prove a prima facie case, showing the following: (a) she is a

member of a protected class; (b) she was qualified for the

position for which she applied; (c) she was rejected in spite of

her qualifications; and (d) the individual who was hired or

promoted is not a member of a protected group and had lesser or

equal qualifications. Carter v. Three Springs Residential

Treatment , 132 F.3d 635 (11th Cir. 1998), citing McDonald

Douglas Corp. v. Green , 411 U.S. 792 (1973).

41. In this case, Petitioner did not present persuasive

evidence that she qualified for or submitted an application for

the position of Chef Tourant. On the other hand, Mr. Edwards

was highly qualified based on his experiences supervising all

food and beverage operations for two major hotel chains, his

experience supervising banquets for another major hotel chain,

and his experience in owning and operating his own sports bar.

42. To the extent that Petitioner and Mr. Edwards had

similar work experience and training in culinary arts, Mr.

Edwards clearly had a superior academic background considering

his four-year degree in business from a university and his

three-year degree in culinary arts from a community college.

43. To demonstrate a prima facie showing of retaliation,

Petitioner is required to prove the following: (a) she engaged

in statutorily protected expression; (b) she suffered an adverse

employment action; and (c) there is a causal connection between

the two events. Holifield v. Reno 115 F.3d 1555, 1556 (11th

Cir. 1997). At a minimum, the causal connection requires

Petitioner to show that "the employer was actually aware of the

protected expression at the time it took adverse employment

action." Goldsmith v. City of Atmore , 996 F.2d 1155, 1163 (11th

Cir. 1993).

44. In this case, there is no credible evidence that Chef

Chirum, Ms. Hanks, or any other authority figure actually knew

that Petitioner had filed a discrimination claim before she was

fired. Petitioner often may have stated to someone working for

Respondent that she intended to file such a claim, but Ms. Hanks

and Chef Chirum were not aware of Petitioner's threats at the

time they terminated her employment. Thus, the greater weight

of the evidence indicates that there was no causal connection

between the filing of Petitioner's July 21, 1997, complaint and

her loss of employment.

45. If an employee proves a prima facie case of age, race,

or gender discrimination based on a failure to promote or

retaliation, the burden shifts to the employer "to articulate

some legitimate, nondiscriminatory reason" for the adverse

employment action. McDonald Douglas Corp. v. Green , 411 U.S. at

802. The employer is not required to prove the absence of

discriminatory motive, but is required to explain what was done

or produce evidence of legitimate, nondiscriminatory reasons for

the adverse action. Board of Trustees v. Sweeney , 439 U.S. 24

(1978). If the employer succeeds in carrying its burden, the

employee then must show that the employer's reasons are pre-

textural. St. Mary's Honor Center v. Hicks , 113 S. Ct. 2742

(1993).

46. In this case, Respondent presented evidence that

Petitioner had been given a verbal warning on August 8, 1997,

and a final written warning on November 24, 1997, for violating

Respondent's attendance policy. When Petitioner failed to show

for scheduled work on December 14, 1997, and failed to

personally contact one of her supervisors, Chef Chirum or Sous

Chef Anglin, she violated the attendance policy again.

Petitioner's reliance on Ms. Thigpen or Ms. Ernest to deliver

her message was not in accordance with Respondent's procedures

and left Chef Chirum no indication of whether Petitioner would

report for work as scheduled on December 15, 1997.

47. On December 15, 1997, Petitioner did not show up for

work or call any of her supervisors to say she was sick. Even

if Petitioner had a problem speaking with Chef Chirum, Sous Chef

Anglin, and Michael Kulow, and assuming that Ms. Hanks was not

in the office on December 15, 1997, Petitioner could have left a

message for Ms. Hanks or called her on December 16, 2000. There

is no persuasive evidence that Petitioner or her attorney spoke

with Ms. Hanks on December 15 or 16, 1997.

48. Petitioner went to see Ms. Hanks on December 17, 1997,

but failed for the third day in a row to contact one of her

supervisors as required by Respondent's attendance policy.

Respondent's termination of Petitioner for failing to abide by

the attendance policy is legitimate and nondiscriminatory.

Petitioner presented no credible evidence to the contrary.

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 dismissing Petitioner's Charge of Discrimination

with prejudice.

DONE AND ENTERED this 12th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2001.

ENDNOTES

1 / There is no competent evidence that Wayne Edwards was a white

male and younger than Petitioner. However, Respondent does not

appear to contest these facts.

2/ In an affidavit that Ms. Hanks signed on September 18, 1998,

during FCHR's investigation, Ms. Hanks stated that Petitioner

often claimed that she was filing a discrimination claim against

Respondent. However, the greater weight of the evidence is that

Respondent was not aware that Petitioner actually had filed a

claim until after she was terminated.

COPIES FURNISHED:

Janice Cunningham

Qualified Representative

Post Office Box 1002

Fort Walton Beach, Florida 32549

Bruce Anderson, Esquire

William Krizner, Esquire

Collins & Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308

Azizi Coleman, Acting Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.