01-002079 Katrina Shannon vs. The Bowles Group, Inc. Status: Closed Recommended Order on Thursday, October 25, 2001.

Summary: Evidence did not show Petitioner was terminated because of race. Petitioner filed action against wrong party since Respondent was subcontracted to provide real employer administrative business services and made no employment decisions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATRINA SHANNON, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2079

)

THE BOWLES GROUP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 23, 2001, in Pensacola, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Katrina Shannon, pro se

2805 East Strong Street

Pensacola, Florida 32503

For Respondent: Deborah E. Frimmel, Esquire

Jackson, Lewis, Schnitzler and Krupman

Post Office Box 3389

Orlando, Florida 32802 - 3389

STATEMENT OF THE ISSUES

The issues to be resolve d in this proceeding are whether

Respondent was the employer of Petitioner and whether Petitioner

was terminated from her employment with Respondent because of

her race.

PRELIMINARY STATEMENT

On September 15, 2000, Petitioner, Katrina Shannon, filed a

Ch arge of Discrimination with the Florida Commission on Human

Relations (FCHR). The Charge of Discrimination alleged that

Workforce 2000 had terminated Petitioner based on her race. At

some point after the filing of the Charge of Discrimination, the

Respon dent, the Bowles Group, Inc., was substituted for

Workforce 2000. It is unclear how this substitution occurred.

However, based on the representation of counsel, Workforce 2000

and the Bowles Group are the same entity and the Bowles Group is

the legal nam e for the party to this action.

On February 23, 2001, Petitioner advised FCHR that more

than 180 days had elapsed since she filed her Charge of

Discrimination, during which time FCHR had not completed its

investigation or entered a Notice of Determination in her case.

Petitioner further advised FCHR that she wished to withdraw her

Charge of Discrimination and file a Petition for Relief to

proceed with an administrative hearing in accordance with

Section 760.11(4)(b)8., Florida Statutes. Petitioner's requ est

was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf,

presented the testimony of two other witnesses and introduced

one exhibit. Respondent presented the testimony of three

witness and offe red seven exhibits into evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on October 5, 2001. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner is an African - American female.

2. In Septemb er 1996, Petitioner began her employment with

Herndon Oil as a convenience store cashier. Workforce 2000,

also known as the Bowles Group, Inc., is a professional employer

organization that provides administrative services to business

owners including payr oll processing, filing and paying taxes,

group benefits administration, and assistance with regulatory

compliance. Herndon Oil utilized Workforce 2000 to provide

these administrative services. At no time did the Bowles Group

make any employment decisions on behalf of Herndon Oil.

Likewise, at no time did the Bowles Group employ Petitioner. In

fact, Herndon Oil made all decisions with regard to Petitioner's

employment and was the actual employer of Petitioner.

3. Herndon Oil operates 68 convenience stor e locations and

12 fast food locations.

4. Pate Weems has been the President of Herndon Oil for

the past six years.

5. Bruce Graham was the District Supervisor responsible

for operation of several Herndon Oil convenience store locations

in the Pensacola , Florida, area.

6. In September 1996, Petitioner was hired to work as a

part - time cashier at the Herndon Oil convenience store location

on Pensacola Boulevard in Pensacola, Florida.

7. Petitioner was hired by location manager, John Malette.

8. In 1996 , during the first week of her employment,

Petitioner overheard an employee from another location make a

derogatory racial comment. The employee who made the comment

had no authority over her.

9. Petitioner did not complain about the employee's

comment an d admitted the comment had nothing to do with her

claims in this case.

10. In January 1998, Petitioner was promoted to the

position of assistant manager.

11. Petitioner's promotion to the position of assistant

manager was approved by Pate Weems.

12. In Mar ch 1999, a location manager position became

available at Herndon Oil's Pensacola Boulevard location.

13. Petitioner never requested a promotion to the position

of location manager. However, it was known by the district

supervisor that Petitioner was inter ested in the position. In

any event, Petitioner and Belinda K. Ortiz, a white employee,

were considered for the position of location manager in March

1999.

14. Ms. Ortiz was chosen for the promotion to location

manager at the Pensacola Boulevard store. M s. Ortiz was chosen

because she had prior experience as a manager and had good

skills to get along with employees, customers, and vendors.

Such communication and interaction skills are a legitimate and

reasonable basis on which to make an employment decis ion. The

evidence did not show that Ms. Ortiz was less qualified than

Petitioner for the position of location manager.

15. Bruce Graham made the decision to promote Ms. Ortiz.

Pate Weems relied on Mr. Graham's judgment with regard to that

decision and a pproved the Ortiz promotion. Petitioner admitted

that Bruce Graham did not discriminate against her based on her

race.

16. Petitioner did not receive the promotion in March 1999

because she needed to improve her communication skills and

interaction with e mployees, customers, and vendors. At the

time, Herndon Oil wanted Petitioner, who has a very serious and

reserved demeanor, to project a friendlier demeanor towards

customers and vendors, in particular. Petitioner was told by

the district supervisor that if she improved her communication

skills and interaction, she would be promoted to a location

manager position when the next position became available.

17. Petitioner transferred to the Herndon Oil convenience

store located at Mobile Highway in Pensacola, Florida, in March

1999.

18. In June 1999, Petitioner was promoted to the position

of location manager at the Mobile Highway convenience store.

19. With input from the district supervisor, Pate Weems

approved the decision to promote Petitioner to the locat ion

manager position.

20. As a location manager, Petitioner was required to

control inventory at her convenience store location. It is the

manager's ultimate responsibility to track such inventory. To

accomplish inventory control, Herndon Oil requires a mounts

received to roughly balance with amounts on - hand and amounts

sold. To track the inventory, daily counts of cigarettes and

weekly counts of beer and fast food should be done by the

location manager. Inventory shortages in general groceries are

not as controllable by inventory counts. Daily and weekly

inventory counts are required to be done by the location manager

for any shortage or overage of $200.00 or more in an inventory

category. These counts are essential to the location managers'

tracking and correcting inventory control problems.

21. Excessive inventory shortages in cigarettes, beer, and

fast food indicates that the location manager is not doing the

required inventory counts.

22. Sometime after her promotion, Petitioner went on

maternity leave. Petitioner returned from maternity leave in

December 1999 and continued as location manager at the Mobile

Highway location.

23. In January 2000, Petitioner's location was $1,631.00

short in inventory.

24. Bruce Graham spoke with Petitioner regardin g this

shortage and asked her to do her daily and weekly counts as

required.

25. Petitioner did not do her daily and weekly inventory

counts as requested.

26. In February 2000, Petitioner's location was $1,758.00

short in inventory.

27. Bruce Graham told the Petitioner once again to do her

daily and weekly inventory counts and that future inventory

shortages could result in termination of her employment.

28. Petitioner admitted she did not do her daily and

weekly counts as requested in February 2000.

29 . In March 2000, Petitioner's location was $760.00 over

in inventory.

30. Petitioner admitted she did not do her daily and

weekly inventory counts in March 2000.

31. The inventory overage at Petitioner's location in

March 2000 indicated manipulation of t he inventory figures.

Manipulation of inventory figures could include withholding

invoices to create the appearance of a more favorable inventory

and often occurs at the end of the quarter when bonus

calculations for the location managers are completed. March

2000 was the end of the quarter for purposes of calculating

location manager bonuses.

32. Petitioner denies that she ever withheld any invoices

in order to manipulate inventory. However, Genoa Brown, a

cashier who worked in Petitioner's location, te stified that

Petitioner withheld two beer invoices during an inventory audit

at her location. Ms. Brown did not testify when the invoices

were withheld. Ms. Brown's testimony is more credible on this

point.

33. In April 2000, Petitioner's location was $4 ,984.00

short in inventory.

34. Bruce Graham allowed Petitioner one week to go through

her invoices and recalculate the inventory to determine whether

a mistake had been made.

35. Petitioner found minor errors in the inventory results

for April 2000. How ever, even with correction of the minor

errors, the April shortage still exceeded $4,900.00.

36. As a result of Petitioner's failure to control

inventory at her location and perform her weekly and daily

inventory counts, her employment was terminated on Ap ril 14,

2000.

37. With input from Bruce Graham, Pate Weems made the

decision to terminate Petitioner's employment.

38. Petitioner believes Pate Weems discriminated against

her based on her race because other Caucasian employees were not

terminated for inve ntory shortages.

39. Petitioner claims that Frances Rush, Ronnie Winslow

and Elsie Miller are the Caucasian employees who had similar or

greater inventory shortages and were not terminated.

40. Petitioner testified she had no documentary evidence

that any of the subjects for comparison had inventory shortages

similar to hers. Petitioner admitted she has no personal

knowledge of the specific amounts of the inventory shortages of

Ronnie Winslow or Elsie Miller. Petitioner's witness, John

Mallette, admitted he had no personal knowledge of the specific

amounts of the inventory shortages of any of the alleged

subjects of comparison. He believed the shortages were large

and, in some instances, as large or larger than Petitioner's

shortages. Such belief is insu fficient evidence on which to

base a finding of similarity or lack of similarity.

41. Frances Rush was a location manager at the Pensacola

Boulevard location from June 1999 until November 2000.

42. Bruce Graham was Ms. Rush's immediate supervisor.

43. Ms. Rush was terminated in November 2000 because of

inventory shortages in groceries at her store location.

44. Ms. Rush's inventory shortages were less egregious

than Petitioner's because her shortages were in groceries and

grocery shortages are not as contro llable by inventory count.

Additionally, Ms. Rush did her daily and weekly counts as

required. Moreover, Ms. Rush never had an inventory shortage as

high as the inventory shortage that resulted in Petitioner's

termination.

45. Ronnie Winslow was a locati on manager who was going to

be terminated for failure to control inventory.

46. There was no evidence showing Mr. Winslow's inventory

control problems were similar to Petitioner's.

47. Mr. Winslow requested and was permitted to remain with

the company as a part - time cashier.

48. Petitioner never requested to remain with the company

in a lesser position at the time of her termination. Had

Petitioner so requested, Pate Weems would have allowed

Petitioner to remain with the company in a lesser position.

49. Elsie Miller was a location manager who voluntarily

resigned in 1997.

50. An Employee Behavioral Notice issued to Ms. Miller,

and the only substantive evidence introduced on this point,

provides that her inventory shortages, for which she was

discipline d, ranged between approximately $350.00 to $1,500.00

Ms. Miller never had inventory shortages in the range of the

shortages that resulted in Petitioner's termination.

51. Petitioner admitted she has no personal knowledge of

the amounts of Ms. Miller's inv entory shortages.

52. In July 1997, Ms. Miller was going to be terminated

for failure to control inventory. At Ms. Miller's request, she

was permitted to resign instead.

53. Petitioner never asked to resign instead of being

terminated. Had she so reques ted, Pate Weems would have

permitted Petitioner to resign instead of being terminated.

54. None of the above subjects of comparison cited by

Petitioner were comparable to Petitioner's situation. All

either were or were going to be terminated for inventory

shortages. In fact, eight out of nine Herndon Oil managers

terminated in the past two years as a result of inventory

shortages were Caucasian.

55. There was no substantive evidence that Petitioner was

terminated because of her race. The clear evidence showed that

Petitioner's termination resulted from her failure to control

inventory and do her inventory counts. Therefore, the Petition

for Relief should be dismissed.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

57. Under the provisions of Section 760.10, Florida

Statutes, it is an unlawful employment practice for an employer:

(1)(a) To discharge or refuse to hire any

individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

58. The Florida Civil Rights Act of 1992, Section 760.11,

Florida Statutes, provides that a charge of discrimination must

be filed within 365 days of the alleged violation, "naming the

employer, employment agency, labor organization, or joint

labor - manag ement committee responsible for the violation."

(emphasis supplied)

59. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand v. F lorida 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 (FCHR 1993).

60. The Supreme Court of the Unite d States established in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII such as the one at bar. This analysis was

reiterated and refined in St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993).

61. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discriminati on. If a prima facie case is

established, Respondent must articulate some legitimate,

non - discriminatory reason for its employment action. If the

employer articulates such a reason, the burden of proof then

shifts back to Petitioner to demonstrate th at the offered reason

is merely a pretext for discrimination. As the Supreme Court

stated in Hicks , before finding discrimination, "[t]he fact

finder must believe the Plaintiff's explanation of intentional

discrimination." 509 U.S. at 519.

62. In Hic ks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden at all times remains with Petitioner to

demonstrate intentional discrimination. Id.

63. In order to establish a prima facie case , Petitioner

must establish that:

(a) She is a member of a protected group;

(b) She is qualified for the position;

(c) She was subject to an adverse

employment decision;

(d) She was treated less favorably than

similarly - situated persons outside the

pr otected class; and

(e) 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).

64. If Petitioner fails to establish a prima facie case of

race discrimination, judgment must be entered in favor of

Respondent. Bel l v. Desoto Memorial Hospital, Inc. , 842 F.Supp.

494 (M.D. Fla. 1994).

65. As indicated earlier, if a prima facie case is

established, a presumption of discrimination arises and the

burden shifts to Respondent to advance a legitimate,

non - discrimi natory reason for the action taken against

Petitioner. However, Respondent does not have the ultimate

burden of persuasion but merely an intermediate burden of

production. Once this non - discriminatory reason is offered by

Respondent, the burden shifts ba ck to Petitioner. Petitioner

must then demonstrate that the offered reason was merely a

pretext for discrimination.

66. In the instant case, Petitioner alleges that she was

terminated because of racial discrimination. Thus, Petitioner

must prove, by a preponderance of the evidence, that Respondent

acted with discriminatory intent. Case law recognizes two ways

in which Petitioner can establish intentional discrimination.

First, discriminatory intent can be established through the

presentation of dire ct evidence. See Early v. Champion

International Corporation , 907 F.2d 1081 (11th Cir. 1990).

Second, in the absence of direct evidence of discriminatory

intent, intentional discrimination can be proven through the

introduction of circumstantial evidence .

67. In this case, Petitioner's race is African - American

and as such, she belongs to a protected class. Petitioner was

terminated from her job with Herndon Oil. The termination

constitutes an adverse employment action. However, the evidence

did not show that Petitioner was terminated because of her race.

Petitioner did not establish that similarly situated non -

minority employees were treated more favorably.

68. The burden is on Petitioner and not on Respondent to

introduce admissible evidence tha t her conduct was similar in

nature to other employees outside her protected classification

and that the other employees were treated more favorably.

Jones v. Gerwens , 874 F.2d 1534, 1541 (11th Cir. 1989). In

order to establish that employees are simila rly situated,

Petitioner must show she and comparable employees are similarly

situated in all respects, including dealing with the same

supervisor, having been subject to the same standards and that

Petitioner engaged in approximately the same conduct as t he

other employees. See Gray v. Russell Corporation , 681 So. 2d

310, 312, 313 (Fla. 1st DCA 1996); Jones 137 F.3d at 1311 - 13.

69. Petitioner alleges that three other employees were

similarly situated and not terminated for excessive inventory

shortage s. However, the evidence presented at hearing does not

show that these employees were similarly situated. Therefore,

Petitioner has not established a prima facie case of race

discrimination.

70. Indeed, the evidence adduced during the hearing

established that Caucasian managers with inventory control

problems similar to Petitioner's were also terminated. In fact,

out of the nine managers terminated for inventory control

problems for the relevant time period, eight were Caucasian.

71. Moreover, even i f Petitioner provided sufficient proof

to establish a prima facie case of race discrimination,

Respondent articulated a credible, non - discriminatory basis for

Petitioner's termination.

72. Finally, in this case, the evidence was clear that the

Bowles Gr oup, Inc., did not employ Petitioner. Herndon Oil was

the employer responsible for any employment decision regarding

Petitioner. Therefore, since the Respondent is not the employer

responsible for Petitioner's termination, the Petition for

Relief should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 25th day of October, 2 001, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

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 25th day of October, 2001.

COPIES FURNISHED :

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road

Bu ilding F, Suite 240

Tallahassee, Florida 32303 - 4149

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Katrina Shannon

2805 East Strong Street

Pensacola, Florida 32503

Deborah E. Frimmel, Esquire

Jackson, Lewis, Schnitzler and Krupman

Post Office Box 3389

Orlando, Florida 32802 - 3389

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.