02-002500 Georgia A. Miller vs. Swifty Mart, Inc. Status: Closed Recommended Order on Thursday, September 19, 2002.

Summary: Petitioner`s claim barred because her Petition for Relief was untimely; Respondent terminated Petitioner`s employment because she was insubordinate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGIA A. MILLER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2500

)

SWIFTY MART, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was cond ucted in this case on August 30,

2002, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Georgia A. Miller, pro se

Post Office Box 156

Calvary, Georgia 39829

For Respondent: J. Steven Carter, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tallahassee, Florida 3 2302

STATEMENT OF THE ISSUES

The issues are whether Petitioner timely filed her Petition

for Relief, and if so, whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based

on her race.

PRELIMINARY STATEMENT

On September 23, 1998, Petitioner Georgia A. Miller

(Petitioner), filed a charge of discrimination with the Florida

Commission on Human Relations (FCHR). Petitioner's charge

alleged that Respondent Swifty Mart, Inc. (Respondent), had

terminated her from h er position as a cashier based on her race.

On May 8, 2002, FCHR issued a "Determination: No Cause"

regarding Petitioner's charge of discrimination. In addition,

FCHR issued a "Notice of Determination: No Charge" on May 8,

2002.

Petitioner filed an un dated Petition for Relief with FCHR

on June 14, 2002.

FCHR referred the Petition for Relief to the Division of

Administrative Hearings (DOAH) on June 19, 2002.

A Notice of Hearing dated July 5, 2002, scheduled the

hearing for August 30, 2002.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of two witnesses. Petitioner offered

five exhibits, which were accepted into evidence.

Respondent presented the testimony of three witnesses at

the hearing. Respondent offered 13 exhibits. Respondent's

Exhibit Nos. R1 through R6 and R8 through R13 were accepted into

evidence. Respondent's Exhibit No. R11 is Charles Nichol's

deposition testimony that was accepted in lieu of live testimony

during the hearing. The undersigned re served ruling on the

admissibility of Respondent's Exhibit No. R7 pending

Respondent's post - hearing filing of Denise Crawford's deposition

testimony.

The parties did not file a transcript of the proceedings

with the Division of Administrative Hearings.

On September 9, 2002, Respondent filed the deposition

testimony of Denise Crawford, FCHR's Clerk. Ms. Crawford's

testimony is hereby accepted in lieu of live testimony during

the hearing. Based on Ms. Crawford's testimony, Respondent's

Exhibit No. R7 is her eby accepted into evidence.

Respondent filed a Proposed Recommended Order on

September 9, 2002. As of the date of the issuance of this

Recommended Order, Petitioner had not filed proposed findings of

fact or conclusions of law.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent

operated a convenience store (the store) in Havana, Florida.

2. In July 1998, Respondent hired Petitioner, a black

female, as a midnight shift cashier for the store at $5.50 per

hour. Charles Nichols , the store manager, made the decision to

hire Petitioner.

3. In addition to Petitioner and the store manager,

Respondent employed five or six other cashiers -- one American

Indian female, one Hispanic male, two white females, and one or

two white males. Petitioner was Respondent's only black

employee.

4. As part of her work orientation, Mr. Nichols furnished

Petitioner with a copy of a cashier's job duties, which she

signed and dated July 8, 1998. Mr. Nichols also provided

Petitioner with other hirin g and orientation information,

including but not limited to, an employee handbook explaining

Respondent's anti - discrimination policies.

5. Mr. Nichols was responsible for the day - to - day

operations at the store. Petitioner admits that Mr. Nichols was

th e best boss she ever had, at least until September 7, 1998,

when Respondent terminated her employment.

6. Shortly after she was hired, Petitioner's payroll check

failed to include some overtime work. Mr. Nichols advanced or

loaned Petitioner the correc t amount out of his own pocket until

the mistake could be corrected.

7. On another occasion, Petitioner intentionally left her

midnight shift (11:00 p.m. to 7:00 a.m.) two hours early,

leaving a new trainee (Jason Smith) in charge of the store.

While s uch conduct was unacceptable, Mr. Nichols decided to

counsel Petitioner instead of terminating her.

8. Petitioner complained about working the midnight shift

due to her family responsibilities. Mr. Nichols attempted to

accommodate Petitioner by schedul ing her to work the evening

shift (3:00 p.m. to 11:00 p.m.) when possible.

9. Respondent hired Jason Smith to work at the store as a

cashier shortly after Petitioner began her employment. In early

September 1998, Mr. Nichols and Respondent's regional m anager,

Clev Mathias, promoted Jason Smith to assistant store manager.

10. An assistant store manager has many of the same day -

to - day duties and responsibilities as the store manager. The

assistant store manager acts as store manager when the manager

i s not present. Accordingly, the assistant store manager's

duties include being responsible for the entire store

operations, supervising employees, and directing the cashiers in

the performance of their duties.

11. The assistant manager does not make fi nal decisions

related to personnel matters. Instead, an assistant manager may

recommend that the store manager take disciplinary action,

including termination.

12. Generally, only one employee is on duty during the

evening and day shifts at the store. Respondent assigns two

employees to work the midnight shift. However, during busy

times, like Friday and Saturday nights, Respondent assigns a

floor person (which is an additional employee) to the evening

shift to assist with some of the cleaning duties.

13. In 1998, Respondent insisted that its employees keep

the store clean and presentable to customers. The company's

mission statement was "selling fresh products in a clean and

bright store." The mission statement meant that the store

should sparkle a nd shine as much possible.

14. In order to ensure compliance with its cleanliness

policy, Respondent used mystery shoppers to conduct "Pride Ride"

inspections. Employees received awards for clean stores, which

usually resulted in better sales. Therefo re, it was

"imperative" that every employee working on every shift,

including the store manager, perform basic cleaning duties. In

fact, one of the essential job duties of a cashier was to

"maintain the cleanliness and appropriate image of entire store,

i nside and out."

15. At a minimum, Respondent expected its employees to mop

the high traffic areas, keep the food counters and fountains

clean and presentable to customers, keep the Parrot Ice machine

operational and clean, and keep the cooler stocked an d cleaned.

These were basic cleaning duties which did not have to be posted

on the store's bulletin board as special cleaning duties.

16. If an employee working on one shift failed to perform

the basic cleaning duties, the employee on the next shift wo uld

have to do the work, creating "double cleaning" duties for the

new shift. Employees were not supposed to leave the premises

after a shift until the store met the cleanliness standard.

17. The evening shift was generally busier than the

midnight shift at the store. The average sales volume for an

evening shift was between approximately $300 to $500 per hour.

On Sunday nights, the average volume would be approximately $200

to $400 per hour. However, during a busy time, the evening

shift may have a sa les volume of approximately $500 to $700 per

hour.

18. On Sunday, September 6, 1998, Petitioner was assigned

to work the evening shift for the store. She was the only

employee assigned to work that shift. The employees that were

assigned to the subseque nt midnight shift and who would be

relieving Petitioner were Rodney Smith (Jason Smith's father)

and Marie Sargent.

19. Rodney Smith usually showed up early for his assigned

midnight shift. He arrived at the store at approximately

10:00 p.m. on Septemb er 6, 1998, and observed that the store was

not clean. As Rodney Smith began filling and cleaning the

Parrot Ice machine, he noticed that Petitioner appeared to be

socializing with a male at the counter for an extended period of

time. Accordingly, Rodney Smith paged the assistant manager,

Jason Smith, so that he could see the condition of the store.

20. Jason Smith worked the day shift at the store on

September 6, 1998. When he finished his shift and when

Petitioner began her shift at 3:00 p.m., the sto re was clean.

21. Jason Smith remained in the store's office for a while

after his shift ended. On two occasions, Jason Smith's use of

the office phone caused a delay in Petitioner's ability to

operate the credit card machine. The first time, Petition er

stepped to the office door and asked Jason Smith to hang up the

phone. The second time, Petitioner yelled from the cash

register telling Jason Smith to hang up the phone. Jason Smith

agreed but told Petitioner the she should not yell.

22. At approx imately 7:30 p.m. on September 6, 1998, Jason

Smith's girlfriend picked him up for a date. The store was

clean when he left the store.

23. Jason Smith was leaving the home of his girlfriend's

parents when he received the page from Rodney Smith at

appro ximately 10:07 p.m. After receiving the page, Jason Smith

proceeded immediately to the store.

24. When Jason Smith arrived at the store, he also noticed

that Petitioner was behind the counter talking to a male. Jason

Smith checked with Rodney Smith to make sure there was no

emergency (such as a robbery, fire, etc.) and was told to look

at the condition of the store. Jason Smith then proceeded to

inspect the convenience store and noticed that the condition of

the store was unacceptable. Specifically, Jason Smith noticed

the following:

That the floor, especially in the high

traffic areas, had not been mopped and was

very dirty.

That the drink fountain had not been cleaned

and there was ice on the floor and counter.

That the hot dog machine had not bee n

cleaned and the hot dogs that were in the

machine had burned.

That the Parrot Ice machine was beeping

which indicated that it had not been filled

with liquid and also, because the machine

had been left on, the Parrot Ice liquid had

continued to dispense the product onto the

machine and then onto the floor.

That the cooler had not been stocked.

25. The condition of the store at the time Jason Smith

inspected it on the night of September 6, 1998, was in violation

of Respondent's policy regarding cleanli ness and store image.

Jason Smith also noticed that Petitioner continued to lean on

the counter talking to the male while he inspected the store.

26. Jason Smith then called Mr. Nichols to let him know

about the unacceptable condition of the store. Jaso n Smith

wanted Mr. Nichols's advice as to the appropriate response to

the situation.

27. Mr. Nichols instructed Jason Smith to run an X - 2

report from the cash register. The purpose of running the X - 2

report was to determine the volume of sales for the store in the

last hour. If the volume of sales was unusually high, it would

mean that Petitioner had been too busy with customers to perform

the regular shift cleaning duties. A high volume of sales would

have explained the unacceptable condition of the store.

28. As instructed by the store manager, Jason Smith ran

the X - 2 report which indicated that the store had only $50 of

sales during the last hour on the evening shift. This small

amount of sales during the past hour would not have prevented

Petit ioner from performing the basic cleaning duties required

for that shift.

29. When Jason Smith first attempted to run the X - 2

report, Petitioner immediately became belligerent and hostile

and was very upset that Jason Smith was trying to run this type

of report on the register. She then called Mr. Nichols to

complain about the situation.

30. Jason Smith communicated the result of the X - 2 report

to Mr. Nichols. The store manager then informed Jason Smith

that he should instruct Petitioner to perform the basic shift

duties necessary to clean the store and to get the store in

acceptable condition before she left her shift that night.

31. Based on the instruction from the store manager, Jason

Smith gave Petitioner verbal instructions to perform certain

b asic cleaning duties of a cashier, including filling the Parrot

Ice machine and mopping and sweeping the high traffic areas.

Since his initial inspection of the store, Jason Smith noticed

that beer bottles had spilled and were broken in the cooler

which c reated an additional mess. Therefore, his instruction to

Petitioner included stocking and cleaning the cooler. To ensure

that there was no confusion about the instructions, Jason Smith

provided Petitioner specific written instructions to perform

these ba sic duties.

32. When Petitioner received these verbal and written

instructions, she once again became very agitated and

belligerent. Petitioner was loud and obnoxious to Jason Smith,

using profane language in front of customers and another

employee. I n response to Petitioner's hostile reaction, Jason

Smith confirmed to Petitioner that she would have to perform

these basic duties before she left the store that night.

33. Jason Smith left the written instructions in the

store's office. On the reverse side of the list, Jason Smith

wrote Mr. Nichols a note regarding Petitioner's hostile

attitude. Jason Smith then left the store because his presence

seemed to aggravate Petitioner.

34. After Jason Smith left the store, Petitioner continued

to complain a bout Jason Smith in front of customers. She wrote

Mr. Nichols a note stating that she wanted a transfer to another

store because she would not work under Jason Smith anymore. She

did not perform the duties that were specifically assigned to

her by Jason Smith before she left her shift that night.

35. The next day, on September 7, 1998, Mr. Nichols

reviewed the handwritten note from Jason Smith indicating that

Petitioner refused to perform the duties. Mr. Nichols also

confirmed with Rodney Smith that t hese events had occurred as

described. Mr. Nichols then had a discussion with Jason Smith

to determine how to handle the situation with Petitioner.

36. According to Respondent's policy, Petitioner's conduct

on September 6, 1998, was such that termination was appropriate.

Recognizing that any employee could have a bad day, Mr. Nichols

and Jason Smith decided that they wanted to give Petitioner an

opportunity to explain her conduct on September 6, 1998.

Therefore, Mr. Nichols called Petitioner to come to the store

and talk with them about the situation and her conduct on

September 6, 1998.

37. Upon arriving at the store to meet with Jason Smith

and Mr. Nichols, Petitioner continued to respond in a hostile

and belligerent tone. She refused to provide them any

explanation for her conduct on September 6, 1998. Specifically,

Petitioner did not explain the following: (a) her refusal to

perform the assigned duties; (b) her refusal to follow a direct

order from the assistant manager; and (c) her belligerent an d

hostile attitude against the assistant manager in front of

customers and other employees.

38. Based on Petitioner's conduct on September 6, 1998,

and her further refusal to provide an adequate explanation for

her conduct, Jason Smith recommended to Mr . Nichols that

Respondent terminate Petitioner. Mr. Nichols agreed with the

recommendation, terminating Petitioner's employment based on her

insubordination and refusal to perform job duties. Respondent's

regional manager approved Mr. Nichols's decision to terminate

Petitioner.

39. Mr. Nichols and Jason Smith prepared and signed an

employee conference summary report on September 7, 1998. When

they presented the report to Petitioner, she refused to sign it.

40. Mr. Nichols also prepared and signed a final personnel

action record on September 7, 1998. The personnel action record

documents Petitioner's termination effective September 7, 1998,

for "insubordination, refused to perform duties."

CONCLUSIONS OF LAW

41. The Division of Administrative He arings has

jurisdiction over the parties and the subject matter of this

proceedings. Sections 120.569, 120.57(1), and 760.11, Florida

Statutes.

42. Section 760.11(7), Florida Statutes, requires a

complainant to file a Petition for Relief, requesting an

a dministrative hearing, within 35 days of the date that FCHR

issues a Determination: No Cause. "If the aggrieved person does

not request an administrative hearing within the 35 days, the

claim will be barred." Section 760.11(7), Florida Statutes.

43. F CHR issued a Notice of Determination: No Cause and a

Determination: No Cause in this case on May 8, 2002. That same

day, the Notice was mailed to Petitioner at her address of

record, using the 31729 zip code for Calvary, Georgia. The

notice expressly adv ised Petitioner of her right to request an

administrative hearing by filing a Petition for Relief within 35

days of May 8, 2002. In other words, Petitioner had to file her

petition on or before June 12, 2002.

44. On June 13, 2002, Petitioner mailed her P etition for

Relief to FCHR. The return address on the envelope containing

the petition was Petitioner's address of record, using the 31729

zip code for Calvary, Georgia. FCHR received the Petition for

Relief on June 14, 2002, two days after expiration of the 35 - day

period.

45. Petitioner asserts that she did not receive the

Determination: No Cause in a timely manner because the zip code

for her mailing address in Calvary, Georgia, currently is 39829.

Petitioner's claim is not persuasive because as lat e as June 13,

2002, Petitioner used the 31729 zip code for Calvary, Georgia,

in her mailing address. More importantly, Petitioner has the

responsibility to ensure that her address of record, including

the zip code, is current at all time.

46. There is no credible evidence to support a finding of

equitable tolling in this case. Consequently, Petitioner's

claim is barred pursuant to Section 760.11(7), Florida Statutes.

47. To the extent that Petitioner's claim is not barred,

she failed to present a pr ima facie case of racial

discrimination. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S.Ct. 1089 (1981); McDonnell Douglas

v. Green , 411 U.S. 792, 93 S.Ct. 1817 (1973).

48. In Anthony T. Lee, et al. v. Russell County Board of

Education of Russell County, Alabama, et al. , 684 F.2d 769, 773

(11th Cir. 1982), the court stated as follows:

Focusing first on the race discrimination

charge, it is well established that such a

claim may be analyzed under the McDonnell

Douglas structure developed in Title VII

suits. The McDonnell Douglas test, as

recently explained by the Supreme Court in

Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S.Ct. 1089,

67 L.Ed.2d 207 (1981), and as modified by

this circuit for applica tion in discharge

(as opposed to hiring) cases, is as follows:

If the plaintiff proves by a preponderance

of the evidence that he or she is a member

of a protected class, was qualified for the

position held, and was discharged while a

person outside of th e class with equal or

lesser qualification was retained, then

plaintiff has established a "prima facie

case" of discrimination.

49. In Jones v. Gerwens , 874 F.2d 1534, 1540 (11th Cir.

1989), the court stated as follows:

Accordingly, we hold that, in case s

involving alleged racial bias in the

application of discipline for violation of

work rules, the plaintiff, in addition to

being a member of a protected class, must

show either (a) that he did not violate the

work rule, or (b) that he engaged in

misconduc t similar to that of a person

outside the protected class, and that the

disciplinary measures enforced against him

were more severe than those enforced against

the other persons who engaged in similar

misconduct.

50. Petitioner is a member of a protect ed class. She is

qualified to work as a cashier. Respondent terminated her

employment. However, she failed to show the following:

(a) that she was not insubordinate; (b) that she engaged in

misconduct similar to that of a person outside the protec ted

class and that the disciplinary measures enforced against her

were more severe than those enforced against the other person

who engaged in similar conduct; (c) that she was discharged

while a person outside the protected class, with equal or lesser

qua lifications, was retained; or (d) that Respondent replaced

her with a person outside the protect class who had equal or

lesser qualifications .

51. Assuming that a complainant proves a prima facie case

of discrimination, an employer has the burden of pro duction to

articulate a legitimate nondiscriminatory reason for the adverse

action. See St. Mary's Honor Center v. Hicks , 519 U.S. 502, 506

(1993). If the employer meets its burden, the complainant must

then prove that the reason articulated by the emplo yer was a

pretext for discriminatory action. St. Mary's Honor Center ,

519 U.S. at 515 - 516. The complainant always retains the

ultimate burden of persuading the trier of fact that the

employer intentionally discriminated against the complainant.

St. Mar y's Honor Center , 519 U.S. at 508 and 511.

52. In this case, Respondent met its burden of producing a

legitimate nondiscriminatory reason for its action by showing

that Petitioner was discharged for being insubordinate and

refusing a direct order to perfo rm basic cleaning duties.

Petitioner produced no credible evidence to show that

Respondent's reason for the adverse action was a pretext for

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMEND ED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 19th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Admin istrative 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 19th day of September, 2002.

COPIES FURNISHED :

J. Steven Carter, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tallahassee, Florida 32302

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkwa y, Suite 100

Tallahassee, Florida 32301

Georgia A. Miller

Post Office Box 156

Calvary, Georgia 39829

Cecil Howard, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBM IT 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.