01-004805 Alice Brooks Cesarin vs. Dillards, Inc. Status: Closed Recommended Order on Tuesday, December 31, 2002.

Summary: Petitioner failed to prove that she was fired by Respondent because of her race. Evidence showed that she was fired because of her unprofessional conduct. Petition dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALICE BROOKS CESARIN, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4805

)

DILLARDS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a fo rmal hearing was held in this case

on October 10, 2002, in Orlando, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael L. Moore, Esquire

Ba ron and Moore, P.A.

640 North Hillside Avenue

Orlando, Florida 32803

For Respondent: Kevin D. Zwetsch, Esquire

Latesa K. Bailey, Esquire

Fowler, White, Gillen, Boggs,

Villareal & Banker, P.A.

Post Office Box 1438

Tampa, Florida 33601

STATEMENT OF THE ISSUES

The issues are (1) whether the Petition for Relief filed by

Petitioner was timely under Section 760.11(7), Florida Statutes,

and (2) whether Respondent engaged in an unlawful employment

practice in violation of the Florida Civil Rights Act of 1992

when it terminated Petitioner's employment as a retail sales

associate in May 1998.

PRELIMINARY STATEMENT

On Novem ber 9, 1998, Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

(Commission) in which she alleged that Respondent discriminated

against her based upon her race (African American), sex

(female), and retaliation (type unspecified) when it terminated

her employment as a retail sales associate at Respondent's

Oviedo, Florida, store in May 1998. The Commission staff

investigated the charge, and on August 31, 2001, the Executive

Director of the Commission issued a "no caus e" determination.

An "amended" determination was issued on October 26, 2001.

The only material difference between the original and the

"amended" determinations is that the original determination was

addressed to Petitioner "c/o Anthony Gonzales, Jr., Es quire" and

the "amended" determination was addressed directly to

Petitioner.

On November 28, 2001, Petitioner filed a Petition for

Relief (Petition) with the Commission. The Petition alleged

only racial discrimination; it did not allege sexual

discrimina tion or retaliation.

On December 10, 2001, the Commission referred the Petition

to the Division of Administrative Hearings (Division) for the

assignment of an administrative law judge to conduct a formal

hearing on the Petition. The hearing was initially scheduled

for March 4, 2002, but was continued three times at the request

of the parties to allow them to complete discovery and to

discuss the possibility of settlement. The hearing was

ultimately held on October 10, 2002.

At the hearing, Petitioner tes tified in her own behalf, and

Petitioner's Exhibit P1 was received into evidence. Respondent

presented the testimony of Heidi Jensen, a former assistant

sales manager with Respondent and Petitioner's immediate

supervisor during her employment. Respondent 's Exhibits 1

through 30, and 35 through 37 were received into evidence.

The Transcript of the hearing was filed with the Division

on November 18, 2002. Pursuant to Respondent's unopposed

request at the conclusion of the hearing, the parties were given

2 0 days from the date the Transcript was filed to submit their

proposed recommended orders ( PRO s). Subsequently, the deadline

for filing the PROs was extended to December 13, 2002. The

parties' PROs were timely filed and were given due consideration

by th e undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

A. Parties

1. Petitioner is an African American female. During the

period of time at issue in this proceeding ( i.e. , January

through May 1998), Petitioner was 49 years old.

2. Respondent is a retail department store chain with

stores located throughout Florida, including a store in Oviedo,

Florida. Respondent is an employer subject to the Florida Civil

Rights Act of 1992.

B. Petitioner's Employment With Respondent

3. On or about January 30, 1998, Petitioner was hired by

Respondent to work as a retail sales associate in Respondent's

Oviedo store. She was originally assigned to work in the

women's clothing department.

4. Petitioner was interviewed and hired by Heidi Jensen, a

white female. Ms. Jensen was the assistant sales manager

responsible for the women's clothing department, and was

Petitioner's direct supervisor throughout the c ourse of

Petitioner's employment.

5. Petitioner was hired as a part - time employee at a rate

of $9.00 per hour. As a part - time employee, she worked

approximately 20 hours per week. Petitioner's schedule was

flexible; she worked eight hours on some days a nd four hours or

less on others. She was typically scheduled on the closing

shift ( i.e. , nights), rather than the opening shift.

6. On February 7, 1998, Petitioner signed a certification

indicating that she had read and agreed to abide by Respondent's

wo rk rules and policies. Those rules include the following

directive, hereafter referred to as "Work Rule 10":

Associates must exhibit positive behavior

toward their job, Management, supervisors,

and co - associates in all of their actions

and speech. Custom ers must always be

treated courteously. Anything to the

contrary will not be tolerated.

7. On February 8, 1998, Petitioner attended a general

orientation at which the work rules and policies were discussed.

That orientation was also attended by other recently - hired

employees, including non - African American employees.

8. Petitioner received additional training from Respondent

throughout her employment, including customer service and sales

training and direction for handling merchandise returns. T hat

training was also provided to other employees, including non -

African American employees.

9. Petitioner never received formal training on how to

"open" the store. However, as noted above, Petitioner typically

worked during the closing shift rather tha n the opening shift.

10. Slightly more than a month into her employment,

Petitioner's co - workers began complaining about her

unprofessional behavior. The complaints alleged that Petitioner

yelled at co - workers; that she initiated arguments with co -

worker s in front of customers regarding who should get credit

for the customer's purchases; that she referred to the customers

in the woman's department (which caters to larger women) as "fat

pigs"; that she stole customers from her co - workers; that she

referred to some of her co - workers as "vultures" and others as

"bitches" or "wolves," often in front of or within "earshot" of

customers; and that she generally upset or harassed co - workers

through her attitude and derogatory comments.

11. The complaints came fr om eight different co - workers,

at least one of whom was an African American female. The

complaints were made in writing by the co - workers, typically

through signed, hand - written statements given to Ms. Jensen or

the store manager.

12. Petitioner denied making any of the statements or

engaging in any of the conduct alleged in the complaints. In

response to the complaints, she took the position that she was

being "singled out" by her co - workers because her aggressive

tactics made her a more successful sal esperson than most of her

co - workers. Despite Petitioner's denials, Ms. Jensen determined

that disciplinary action was appropriate based upon her

investigation of the complaints.

13. Ms. Jensen gave Petitioner a verbal warning

"concerning using a posit ive attitude towards merchandise and

customers" on March 7, 1998, and she gave Petitioner a formal

written warning for her lack of positive attitude towards

customers and co - workers on March 19, 1998. Both warnings cited

Work Rule 10 as having been violat ed.

14. Despite the warnings, Petitioner's conduct continued

to generate complaints from her co - workers. She received

another verbal warning from Ms. Jensen on April 17, 1998, and

she received a formal written warning from the store manager on

April 22, 1998. Again, the warnings cited Work Rule 10 as

having been violated.

15. Petitioner continued to deny any wrongdoing. She

again claimed that she was being "targeted" by her co - workers

because of their "jealousy and envy" over her success as a

salespe rson.

16. The April 22, 1998, written warning stated that "[i]f

there is one more report of negativity or verbal abuse of

customers or associates, [Petitioner] will be terminated." It

also enumerated Respondent's "expectations" with respect to

Petition er's conduct, including a requirement that Petitioner

" never confront an associate in front of a customer" (emphasis

in original).

17. At some point after the April 22, 1998, written

warning, Petitioner was transferred from the women's department

to the casual department to give her a "clean slate" with her

co - workers. Despite the transfer, Petitioner's co - workers

continued to complain about her behavior. The complaints were

of the same nature as the complaints discussed above, e.g. ,

stealing sales from other co - workers and initiating

confrontations with co - workers over customers in the customer's

presence.

18. On May 22, 1998, Petitioner and a co - worker, Brenda

Ross, "had words" over a customer. When confronted about the

incident by Ms. Jensen, Petiti oner "was loud and aggressive"

towards her. As a result of this incident and the prior

warnings, Ms. Jensen recommended that Petitioner's employment be

terminated.

19. The store manager accepted Ms. Jensen's

recommendation, and, Petitioner was terminat ed on May 22, 1998.

Thus, the term of Petitioner's employment with Respondent was

less than four months.

20. After she was fired, Petitioner returned to her work

station to retrieve her belongings. While doing so, she

confronted Ms. Ross and called her a "lying bitch" (according to

Petitioner's own testimony at the hearing) or something

similarly derogatory. 1

21. There are no videotapes of the incidents described

above. None of the co - workers who reported the incidents

testified at the hearing. Nevert heless, the co - worker's

contemporaneous hand - written reports of the incidents which were

received into evidence (Respondent's Exhibits 21 - 30) are found

to be credible based upon their general consistency and the

corroborating testimony of Ms. Jensen at the hearing. By

contrast, Petitioner's testimony regarding the incidents was not

credible.

22. There is no credible evidence to support Petitioner's

allegations that she was denied the opportunity to file

complaints against her co - workers. Nor is there any credible

evidence that Petitioner did file complaints (alleging

discrimination or anything else) which were ignored by

Respondent's management.

23. By all accounts, Petitioner was a good salesperson;

her sales per hour were high and, on several occasion s, they

were the highest in the department where she was working. Ms.

Jensen complemented Petitioner on at least one occasion for her

high level of sales.

24. Petitioner was also punctual and had a good attendance

record. She was on track to receive a p ay increase at her next

review. However, as a result of the unprofessional behavior

detailed above, she was fired prior that review.

25. Petitioner is currently unemployed. She has not held

a job since she was fired by Respondent in May 1998. However,

she has only applied for four or five other jobs since that

time.

C. Petitioner's Discrimination Claim

26. Petitioner first contacted the Commission regarding

her allegation that Respondent discriminated against her on or

about June 29, 1998. On that date, she filled out the

Commission's "intake questionnaire."

27. On the questionnaire, she indicated that she had

sought assistance from attorney Anthony Gonzales, Jr. (Attorney

Gonzales) regarding the alleged discrimination by Respondent.

Petitioner a lso listed Attorney Gonzales as her representative

on the "intake inquiry form and complaint log" completed on or

about July 10, 1998.

28. Petitioner consulted with Attorney Gonzales in

April 1998, prior to her termination. Although Petitioner

claimed at the hearing that Attorney Gonzales did not agree to

represent her beyond the initial consultation, Petitioner

provided the Commission a copy of Attorney Gonzales' business

card and a copy of the check by which Petitioner paid Attorney

Gonzales' consulta tion fee with the Commission's intake

documents. Based upon those documents, the Commission

apparently (and reasonably) assumed that Attorney Gonzales was

Petitioner's attorney because it subsequently directed various

letters to Petitioner "c/o Anthony Go nzales, Jr., Esq." at

Attorney Gonzales' address.

29. Petitioner filed her formal charge of discrimination

on November 9, 1998. The charge did not reference Attorney

Gonzales. Nevertheless, on December 7, 1998, the Commission

sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at

Attorney Gonzales' address confirming receipt of the charge of

discrimination.

30. The record does not include any correspondence from

Attorney Gonzales to the Commission in response to the

December 7, 1998, confirma tion letter. However, Attorney

Gonzales continued to receive correspondence from the Commission

regarding Petitioner's charge of discrimination after that date.

31. On February 2, 1999, the Commission sent a letter to

Petitioner "c/o Anthony Gonzales, Es q." at Attorney Gonzales'

address indicating that Petitioner's charge of discrimination

had been pending for over 180 days and identifying the options

available to Petitioner. The letter was accompanied by an

"election of rights" form which was to be comp leted and returned

to the Commission.

32. Attorney Gonzales apparently forwarded the form to

Petitioner because Petitioner completed and signed the form and

returned it to the Commission on June 17, 1999. This strongly

suggests that there was an attorney - client relationship between

Attorney Gonzales and Petitioner at the time. Indeed, if there

was no attorney - client relationship, either Petitioner or

Attorney Gonzales would have informed the Commission in

connection with the return of the form that Attor ney Gonzales

was not representing here. However, neither did.

33. The record does not include any additional

communications between the Commission and Petitioner and/or

Attorney Gonzales between June 1999 and August 2001. Notably

absent from the record is any notice to the Commission that

Attorney Gonzales was no longer representing Petitioner.

34. On August 31, 2001, the Executive Director of the

Commission issued a "no cause" determination on Petitioner's

charge of discrimination. On that same date, the Clerk of the

Commission sent notice of the determination to Petitioner "c/o

Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The

notice stated that "[c]omplainant may request an administrative

hearing by filing a PETITION FOR RELIEF within 35 days of the

date of this NOTICE OF DETERMINATION : NO CAUSE" (emphasis

supplied and capitalization in original), and further stated

that the claim "will be dismissed" if not filed within that

time.

35. Attorney Gonzales contacted Petitioner by telepho ne

after he received the notice of determination. The record does

not reflect the date of that contact. However, Petitioner

testified at the hearing that Attorney Gonzales informed her

during the telephone call that the deadline for requesting a

hearing had not yet expired. Accordingly, the contact must have

occurred prior to October 5, 2001, which is 35 days after

August 31, 2001.

36. Despite the notice from Attorney Gonzales, Petitioner

did not immediately file a Petition or contact the Commission.

37. She did not contact the Commission until October 16, 2001.

On that date, she spoke with Commission employee Gerardo Rivera

and advised Mr. Rivera that Attorney Gonzales was not

representing her. Mr. Rivera indicated that the Commission

would send a n "amended" notice directly to her.

38. An "amended" determination of no cause was issued by

the Executive Director of the Commission on October 26, 2001.

On that same date, an "amended" notice of determination was

mailed to Petitioner.

39. Included wit h the "amended" notice was a blank

petition for relief form. Petitioner completed the form and

mailed it to the Commission. The Petition was received by the

Commission on November 28, 2001, 2 which is 33 days after the date

of the "amended" determination, but 89 days after the date of

the original August 31, 2001 determination.

40. Mr. Rivera's affidavit (Exhibit P1) characterized the

mailing of the original determination to Attorney Gonzales as

"our [the Commission's] error" and a "mistake." The

prepond erance of the evidence does not support that

characterization.

41. Specifically, the record reflects that it was

Petitioner who gave the Commission the impression that Attorney

Gonzales was representing her, and neither Petitioner nor

Attorney Gonzales did anything to advise the Commission

otherwise during the two and one - half years that the Commission

investigated Petitioner's charge of discrimination and sent

letters to Attorney Gonzales on Petitioner's behalf. Indeed,

Petitioner testified at the hear ing that the October 16, 2001,

conversation with Mr. Rivera was the first (and only) time that

she informed the Commission that Attorney Gonzales was not

representing her.

CONCLUSIONS OF LAW

A. Jurisdiction

42. The Division of Administrative Hearings ha s

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

760.11(7), Florida Statutes. (All references to Sections and

Chapters are to the Florida Statutes (2001)).

B. Timeliness of the Petition for Relief 3

43. Section 760.11(7) provides:

If the commission determines that there is

not reasonable cause to believe that a

violation of the Florida Civil Rights Act of

1992 has occurred, the commission shall

dismiss the complaint. The aggrieved pers on

may request an administrative hearing under

ss. 120.569 and 120.57, but any such request

must be made within 35 days of the date of

determination of reasonable cause and any

such hearing shall be heard by an

administrative law judge and not by the

commi ssion or a commissioner. If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

(emphasis supplied).

44. The language of Section 760.11(7) and the language of

the Commission's notice of det ermination in this case clearly

suggest that the 35 - day period runs from the date of the

determination, not the date that the petitioner receives notice

of the determination. But cf. Joshua v. City of Gainesville ,

768 So. 2d 432, 438 (Fla. 2000) ("[T]he L egislature chose to

make the limitations period [in Section 760.11(8)] contingent

on the receipt of a reasonable cause determination.") (emphasis

supplied); Henry v. Dept. of Administration , 431 So. 2d 677, 680

(Fla. 1st DCA 1983) ("An agency seeking to e stablish waiver

based on the passage of time following action claimed as final

must show that the party affected by such action has received

notice sufficient to commence the running of the time period

within which review must be sought."); Irwin v. Depart ment of

Veterans Affairs , 498 U.S. 89, 92 - 93 (1990) (period for filing a

claim under federal law counterpart to Chapter 760 runs from

receipt of the determination from the Equal Employment

Opportunity Commission (EEOC) by the petitioner or his or her

attor ney, but unlike Section 760.11(7) the federal statute

specifically refers to "receipt" of the determination as the

triggering event).

45. The Commission's prior orders also compute the 35 - day

period from the date of the notice of determination, not the

da te that Petitioner receives that notice. See , e.g. , Debose v.

Columbia North Florida Regional Medical Center , FCHR Order No.

01 - 007 (Feb. 8, 2001) (Order of Remand in DOAH Case No. 00 -

3426), writ of prohibition denied , 793 So. 2d 931 (Fla. 1st DCA

2001) ( table); Garland v. Dept. of State , DOAH Case No. 00 - 1797,

Recommended Order at 3 (July 24, 2000), adopted in toto , FCHR

Order No. 01 - 001 (Feb. 8, 2001). And cf. Ambroise v.

O'Donnell's Corp. , DOAH Case No. 02 - 2762 (Sept. 5, 2002).

46. In this case, the C ommission's original "no cause"

determination was dated August 31, 2001. As a result, the

deadline for filing a request for a hearing with the Commission

pursuant to Section 760.11(7) was October 5, 2001. However, the

Petition was not received by the Com mission until November 28,

2001, which was 89 days after the date of the original

determination. Even if the filing date was considered to be the

date that the Petition was mailed, see Rule 60Y - 4.004(1),

Florida Administrative Code; but see Ambroise , Reco mmended Order

at 8 - 12 (concluding that the Commission's procedural rules have

been ineffective since the adoption of the Uniform Rules

pursuant to Section 120.54(5)), the Petition was untimely since

it was not mailed until November 26, 2001, which is 87 da ys

after the date of the original determination.

47. Despite the language of Section 760.11(7) which states

that an untimely claim "will be barred" if not timely filed, the

35 - day filing period is not jurisdictional and is subject to

equitable tolling. S ee Irwin , 498 U.S. at 95 - 96 (1990) (filing

period in federal law counterpart to Chapter 760 is not

jurisdictional); Donald v. Winn - Dixie Stores, Inc. , 19 F.A.L.R.

4357, 4371 (FCHR 1995) (noting that the "period for filing the

Petition for Relief is not jur isdictional but is subject to

equitable tolling") (citing Clark v. Department of Corrections ,

8 F.A.L.R. 679 (FCHR 1985)); Rule 60Y - 5.008(2), Florida

Administrative Code, (not directly implicated in this case but

purporting to authorize the Executive Direc tor of the Commission

to extend the deadline for filing a petition for relief "for

good cause shown"). But cf. Hernandez vanspo Electronics,

Inc. , DOAH Case No. 99 - 3576, Recommended Order, at 15 - 20

(June 6, 2000) (concluding that the doctrine of equit able

tolling is implicated in administrative proceedings only where

the state agency's actions or inactions prevent the petitioner

from timely asserting his or her rights and the state agency is

the adverse party), remanded on other grounds FCHR Order No. 01 -

055 (Dec. 4, 2001).

48. The doctrine of equitable tolling will excuse a late -

filed petition where it is shown that Petitioner was lulled into

inaction or has in some extraordinary way been prevented from

timely asserting her rights. See generally Mach ules v. Dept. of

Administration , 523 So. 2d 1132, 1134 (Fla. 1988). And see Cann

v. Dept. of Children & Family Services , 813 So. 2d 237, 238

(Fla. 2d DCA 2002) (excusable neglect no longer saves an

untimely request for an administrative hearing, but doctr ine of

equitable tolling might).

49. The only potential basis for applying the doctrine of

equitable tolling in this case is that the original

determination was directed to Attorney Gonzales, not Petitioner.

However, Petitioner testified that prior to the expiration of

the original 35 - day period, Attorney Gonzales informed her of

the Commission's determination as well as her deadline for

filing a Petition. Thus, to the extent that the Commission was

mistaken when it sent the original determination to Attorney

Gonzales (and, as detailed in the Findings of Fact, the

preponderance of the evidence suggests that the Commission was

not mistaken 4 ), that mistake did not prevent Petitioner from

timely asserting her rights because Attorney Gonzales informed

her of the deadline prior to its expiration.

50. Despite the notice from Attorney Gonzales, Petitioner

failed to timely file a Petition or contact the Commission prior

to the expiration of the deadline. Indeed, Petitioner's own

evidence (Exhibit P1) and test imony confirms that she did not

contact the Commission regarding Attorney Gonzales' "mistaken"

receipt of the original determination until October 16, 2001,

which was more than 10 days after the expiration of the original

35 - day period.

51. The circumstan ces of this case are similar to those in

Jancyn Manufacturing Corp. v. Dept. of Health , 742 So. 2d 473

(Fla. 1st DCA 1999). In that case, Petitioner, through counsel,

obtained an extension of time to file a request for a hearing.

Petitioner's counsel sub sequently withdrew and, in so doing,

informed Petitioner of its deadline for requesting a hearing.

Despite that notice, Petitioner failed to timely request a

hearing, and the agency subsequently denied Petitioner's

untimely request. The First District Co urt of appeal affirmed.

The court held that "[t]he withdrawal of its counsel does not by

itself constitute an extraordinary circumstance to require

application of the equitable tolling doctrine" and further noted

that the doctrine does not excuse the late filing of a petition

which results from a litigant sleeping on its rights. Id. at

476. Accord Irwin , 498 U.S. at 96 (doctrine of equitable

tolling not implicated where delay in filing was attributable to

the petitioner's attorney being out of the countr y when his

office received the determination letter from the EEOC).

52. The credible evidence in this case demonstrates that

Petitioner (like the appellant in Jancyn ) slept on her rights

after receiving notice from Attorney Gonzales of the

Commission's de termination and the resulting deadline. In this

regard, this case (like Jancyn ) simply involves a Petitioner who

was aware of, but failed to meet the applicable statutory

deadline. And see , e.g. , Environmental Resource Associates of

Florida, Inc. v. Dept . of General Services , 624 So. 2d 330, 331

(Fla. 1st DCA 1993) ("There is nothing extraordinary in the

failure to timely file in this case. Quite to the contrary, the

problem in this case is the too ordinary occurrence of a [party]

failing to meet a filin g deadline.") Accordingly, the doctrine

of equitable tolling is not implicated.

53. Because the original 35 - day period had expired prior

to Petitioner contacting the Commission on October 16, 2001, and

because that period was not equitably tolled as a re sult of the

original determination being sent to Attorney Gonzales, the

Commission was without jurisdiction to issue the "amended"

determination. See , e.g. , Millinger v. Broward County Mental

Health Div. , 672 So. 2d 24 (Fla. 1996) (agency does not have

au thority to reissue final order to breath life into an appeal

where the notice of appeal of the original final order was

untimely). Accordingly, the fact that the Petition was received

by the Commission within 35 days of the "amended" determination

is of n o consequence.

54. In sum, because the Petition was received by the

Commission more than 35 days after the original "no cause"

determination and because the doctrine of equitable tolling is

inapplicable under the circumstances of this case, the Petition

i s untimely and the claims contained therein are "barred." See

Section 760.11(7). Accordingly, the Petition should be

dismissed. See Garland , supra ; Ambroise , supra .

C. Merits of the Petition for Relief

55. Section 760.10(1)(a) provides that it is an u nlawful

employment practice for an employer:

To discharge or to fail 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

individ ual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

56. This language was patterned after Title VII of the

Civil Rights Act of 1964. Therefore, case law construing Title

VII is persuasive when construing Section 760.10. See Gray v.

Russell Corp. , 681 So. 2d 310 (Fla. 1st DCA 1996); Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

57. The original charge of discrimination filed by

Petitioner with the Commission alleged that she was fired as a

result of her race, her sex, and "retaliation." However, the

Petition which initiated this proceeding alleged only race

discrimination; it did not allege sex discrimination or

retaliation. As a result, the hearing was limited to

Petitioner's race discrimination claim, as is this Recommended

Order.

58. Because Petitioner did not present any credible direct

evidence of discrimination by Respondent, Petitioner's claim

must be analyzed under the framework established by the United

States Supreme Court in McDonnell - Douglass Corporation v. Green ,

411 U.S. 792 (1973), and Texas Department of Community Affairs

v. Burdine , 450 U.S. 248 (1981). The framework established in

those cases was reaffirmed and refined by the Court in St.

Mary's Honor Center v . Hicks , 509 U.S. 502 (1993).

59. Petitioner has the burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. See Hicks , 509 U.S. at 506. In order to

establish a prima facie case of wrongful termination, P etitioner

must establish that: (1) she is a member of a protected

minority, (2) she was qualified for the job from which she was

discharged, (3) that she was discharged, and (4) her former

position was filled by a non minority or that she was

disciplined differently than a similarly - situated employee

outside of her protected class. See Jones v. Lumberjack Meats,

Inc. , 680 F. 2d 98, 101 (11th Cir. 1982); Scholz v. RDV Sports,

Inc. , 710 So. 2d 618, 623 (Fla. 5th DCA 1998). And cf. Ramos v.

Walton County Bo ard of County Commissioners , DOAH Case No. 91 -

4385, 1992 WL 880766, at *7 (Apr. 24, 1992) ("Petitioner made

out a prima facie case of unlawful termination by proof that he

belongs to a protected class, and that he lost his job while

similarly situated pers ons not in the protected class kept

theirs.").

60. If a prima facie case is established, the burden

shifts to Respondent to produce evidence that the adverse

employment action was taken for legitimate non - discriminatory

reasons. Hicks , 509 U.S. at 506 - 07 . Once a non - discriminatory

reason is offered by Respondent, the burden then shifts back to

Petitioner to demonstrate that the offered reason is merely a

pretext for discrimination, i.e. , the reason is false and that

the real reason for Respondent's decis ion to terminate

Petitioner was race. Id. at 507 - 08, 515 - 17. In this regard,

the ultimate burden of persuasion remains with Petitioner

throughout the case to demonstrate a discriminatory motive for

the adverse employment action. Id. at 508, 510 - 11.

61. Petitioner established the first three elements of a

prima facie case, i.e. , that she is a member of a protected

class (African American), that she was qualified for the retail

sales associate position, and that she was fired from the

position. However, she failed to establish the fourth element,

i.e. , that she was disciplined differently than a similarly

situated non - African American or that her position was filled by

a non - African American.

62. There is no evidence that Petitioner's position was

filled by a non - African American, nor is there any credible

evidence that Respondent did not terminate similarly situated

non - African American employees for conduct similar to that

engaged in by Petitioner. Indeed, the preponderance of the

evidence demonstrates that no other retail sales associate

exhibited unprofessional conduct similar to that exhibited by

Petitioner. Accordingly, Petitioner failed to establish her

prima facie case. See Holifield v. Reno , 115 F. 3d 1555, 1563

(11th Cir. 1997) (affirming summ ary judgment entered in favor of

employer because plaintiff failed to establish that establish

that "the non - minority employees with whom he compares his

treatment were similarly situated in all aspects, or that their

conduct was of comparable seriousness to the conduct for which

he was discharged").

63. Even if Petitioner had established a prima facie case,

Respondent met its burden to produce evidence of a legitimate

nondiscriminatory reason for the adverse employment action.

Specifically, it offered c redible evidence showing that

Petitioner was fired solely because of her extensive

disciplinary history during her four months of employment with

Respondent.

64. Respondent also introduced credible evidence showing

that Petitioner mischaracterized her edu cational background on

her employment application when she indicated that she has an

Associates degree when, in fact, she does not. Respondent

argues that by providing incorrect information on her employment

application, Petitioner also violated Responden t's Work Rule 5

which prohibits "falsification" and requires "[s]trict

honesty . . . in all dealings with or for [Respondent]," thereby

providing an independent basis (and another nondiscriminatory

reason) for its decision to terminate Respondent. No weig ht has

been given to this post hoc justification because Ms. Jensen

confirmed at the hearing that the erroneous information on

Petitioner's application played no part in the May 1998 decision

to terminate Petitioner's employment.

65. The evidence regardin g Petitioner's disciplinary

history is more than sufficient to sustain Respondent's burden

of production. See Hicks , 509 U.S. at 507, 509 - 11, 520 - 25 (it

is not necessary that the proffered reasons be true; it is only

necessary that the reasons, if believe d by the trier of fact,

would support a finding that unlawful discrimination was not the

cause of the employment action). Moreover, the fact that the

same person (Ms. Jensen) hired Petitioner and recommended her

firing approximately four months later is f urther evidence that

Petitioner was fired because of her disciplinary history rather

than her race. See , e.g. , Bradley v. Harcourt , 104 F.3d 267,

270 - 71 (9th Cir. 1996) ("[W]here the same actor is responsible

for the hiring and the firing of a discriminat ion plaintiff, and

both actions occur within a short period of time, a strong

inference arises that there was no discriminatory motive.");

Equal Employment Opportunity Comm'n v. Our Lady of Resurrection

Medical Center , 77 F.3d 145, 151 (7th Cir. 1996) (sam e).

66. In response, Petitioner failed to introduce any

credible evidence that the reasons asserted by Respondent were

pretextual. Her testimony that the events alleged in her co -

worker's reports which led to the verbal and written warnings

did not actua lly occur was not credible and is contrary to the

weight of the evidence.

67. Moreover, even if the events alleged in the reports

did not occur, there is absolutely no credible evidence that the

co - workers fabricated the reports based upon racial animus o r

that Respondent acted on those reports for such reasons.

Indeed, at least one of the reports against Petitioner was made

by an African American female, and the conduct alleged in that

report is consistent with the conduct alleged in the other

reports. Furthermore, Petitioner consistently claimed in

response to the warnings that the reports were fabricated as a

result of her co - worker's "envy and jealousy" of her success as

a salesperson rather than her race. Cf. Hicks , 509 U.S. at 508

(noting that the district court concluded that the employee

proved the existence of a crusade to terminate him, but that he

failed to prove that the crusade was racially, rather than

personally, motivated).

68. In sum, Petitioner failed to meet her ultimate burden

to prov e that the reasons proferred by Respondent for her

termination were false or pretextual and that that she was

actually fired because of her race.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order dismissing the Petition for Relief.

DONE AND ENTERED this 31st day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

T. KENT WETHERELL, II

Administr ative 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 Adminis trative Hearings

this 31st day of December, 2002.

ENDNOTES

1/ Ms. Jensen, who accompanied Petitioner to retrieve her

belongings, testified at the hearing that Petitioner actually

called Ms. Ross a "liar and a fat bitch." Accord Respondent's

Exhibit 20 , at page 3.

2/ The copy of the Petition included with the Commission's

letter referring this case to the Division was not date - stamped,

nor was the copy of the Petition introduced at the hearing.

However, the mail records attached to Petitioner's respo nse to

Respondent's motion to dismiss, filed May 10, 2002, showed that

the Petition was sent to the Commission by certified mail on

November 26, 2001, and that it was received by the Commission on

November 28, 2001. Those dates were treated as supplementa l

factual allegations ( see Order dated May 28, 2002), and they

were not disputed at the hearing through any evidence presented

by Respondent.

3/ Respondent's motion to dismiss and motion for summary

judgment on this ground were denied by Orders dated May 28,

2002, and October 8, 2002, respectively. However, those Orders

were based upon the procedural posture of the case and/or state

of the record at the time of the motions.

4/ Indeed, it is reasonable to expect that if Attorney Gonzales

had not agreed to represent Petitioner in connection with the

charge of discrimination that Petitioner filed with the

Commission, then he would have communicated that fact to the

Commission as soon as he began receiving correspondence from the

Commission on Petitioner's behalf. However, he apparently

failed to do so and the Commission continued to correspond with

him in accordance with its rules for two and one - half years.

See Rule 60Y - 4.008(2), Florida Administrative Code (attorney of

record will "receive pleadings unt il notice of withdrawal of

authorization is filed with the Commission by the represented

party or a motion to withdraw has been served on the represented

party and approved by the Commission.").

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Co mmission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael L. Moore, Esquire

Baron and Moore, P.A.

640 North Hillside Avenue

Orlando, Florida 32803

Kevin D. Zwetsch, Esquire

Latesa K. Bailey, Esquire

Fowler, White, Gillen, Boggs, Villareal

& Banker, P.A.

Post Office Box 1438

Tampa, Florida 33601

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.