03-000720 Esperanza Gonzalez vs. Sunglass Hut, Inc., N/K/A Luxottica Retail Status: Closed Recommended Order on Monday, October 6, 2003.

Summary: Employer did not discriminate against employee based on age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESPERANZA GONZALEZ, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0720

)

SUNGLASS HUT, INC., n/k/a )

LUXOTTICA RETAIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

May 27, 2003, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petiti oner: Esperanza Gonzalez, pro se

1411 Meridian Avenue, Apartment 1

Miami Beach, Florida 33139

For Respondent: Mark J. Chumley, Esquire

Keating, Muething & Klekamp, PLL

1400 Provident Tower

One East Fourth Street

Cincinnati, Ohio 45202

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner based

on her age as alleged in the Petition for Relief fro m an

Unlawful Employment Practice (Petition for Relief) filed with

the Florida Commission on Human Relations (FCHR) on February 26,

2003.

PRELIMINARY STATEMENT

By her "Amended Charge of Discrimination" dated March 7,

2001, Petitioner charged her employer (Respondent) with

discriminating against her based on her age. Petitioner gave

the following description of how she had been discriminated

against based on her age:

1. In December 1999 I was given a poor

evaluation although my sales and performance

ha d been good. I believe this was done in

an attempt to keep me from obtaining a

promotion. I was also harassed by my

supervisor. . . .

2. In April/May 2000 [I] was passed over

for a promotion. The position of manager

was offered to a young female (Far rah Shafi)

with very little experience (approximately

23 years old) who was new to the company.

Due to her sales she was never actually

given the title of Manager.

3. I was denied training which was given

to Ms. Shafi. . . .

Following its investigatio n, FCHR entered its "Notice of

Determination: No Cause" on January 21, 2003.

On February 26, 2003, Petitioner filed her Petition for

Relief with FCHR that alleged she had been passed over for a

promotion as manager and given an unfair performance evaluatio n.

The Petition for Relief did not repeat the allegation contained

in the Amended Charge of Discrimination that she had been denied

training that had been given Ms. Shafi. 1

The FCHR referred the matter to the Division of

Administrative Hearings, and thi s proceeding followed. At the

final hearing, the parties offered one joint exhibit

(Petitioner's performance evaluation in December 1999).

Petitioner testified on her own behalf, but presented no other

witnesses. Petitioner offered two exhibits, neither of which

was admitted into evidence because neither was shown to have any

relevance to any matter at issue in this proceeding. Following

the final hearing, Petitioner mailed to the undersigned several

documents that she wanted admitted as exhibits. Thes e documents

were not authenticated at the final hearing, have not been

admitted into evidence, and were not considered by the

undersigned in the preparation of this Recommended Order.

Respondent presented the testimony of Ricky Boykin, who is

Respondent' s human resources manager. Respondent offered one

exhibit, which was admitted into evidence.

No transcript of the proceedings has been filed.

Respondent filed a Proposed Recommended Order, which has been

considered by the undersigned in the preparation of this

Recommended Order. Petitioner did not file a Proposed

Recommended Order.

All statutory citations are to Florida Statutes (2002),

unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is a female who was born April 29, 1946. At

all times material to this proceeding, Respondent employed

Petitioner as a sales person at a retail sales counter operated

by Respondent, but located within a Burdines department store.

Respondent did not have an on - site manager for this sales

location.

2. In Dec ember 1999, Petitioner received a routine

performance evaluation signed by Joyce Rodriguez, who was

Petitioner's supervisor. This was a favorable evaluation that

rated Petitioner in each category as either having "Exceeded

Standards" or "Achieved Standard s." As a result of this

favorable evaluation, Petitioner received an increase in her

hourly rate of pay. There was no evidence that Petitioner was

discriminated against by her 1999 performance evaluation or by

the pay increase she received as a result of that evaluation.

3. Ms. Shafi, the employee mentioned by name in

Petitioner's Amended Charge of Discrimination, was not hired by

Respondent for a management position, nor was she ever promoted

to a management position.

4. Petitioner has never applied for or otherwise requested

a management position with Respondent. Opportunities for entry -

level management positions exist only at retail locations with

on - site managers, which would require Petitioner to transfer to

another location. Respondent's manage ment has discussed such

positions with Petitioner at various times, but she failed to

take advantage of any of these opportunities.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to th is case

pursuant to Sections 120.569 and 120.57(1).

6. Section 760.10 prohibits employment discrimination

based on an individual's age. Section 760.10(1)(a) provides, in

part, as follows:

1. It is an unlawful employment practice

for an employer:

( a) 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.

* * *

(4)..I t is an unlawful employment practice

for any employer . . ., to discriminate

against any individual because of . . . age

. . . in admission to, or employment in, any

program established to provide

apprenticeship or other training.

7. Petitioner has the burden of proving by the

preponderance of the evidence a prima facie case that Respondent

committed an unlawful employment practice. See Florida

Department of Transportation v. J. W. C. Company, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981). If that prima fac ie case is

established, the defending Respondent must articulate a

legitimate, non - discriminatory reason for the action taken

against Petitioner. The burden then shifts back to Petitioner

to go forward with evidence to demonstrate that the offered

reason is merely a pretext for unlawful discrimination. See

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

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

(1981); and St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993).

8. Petitio ner presented no evidence that would establish a

prima facie case of discrimination against Respondent, and the

burden of going forward with the evidence never shifted to

Respondent. Petitioner failed to meet her burden of proof in

this proceeding, and he r Petition for Relief should be

dismissed.

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 the Petition for Relief

filed in th is case.

DONE AND ENTERED this 6th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

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 6th day of October, 2003.

ENDNOTE

1/ This allegation refers to Resp ondent's training program for

new sales associates referred to as the "On - Boarding" program.

This training program was not available when Petitioner was

hired, and there was no evidence that the training program would

have enabled Petitioner to become a m anager. Respondent's

management has offered Petitioner the opportunity to participate

in the On - Boarding program, but she declined the offer.

COPIES FURNISHED :

Mark J. Chumley, Esquire

Keating, Muething & Klekamp, PLL

1400 Provident Tower

One East Fo urth Street

Cincinnati, Ohio 45202

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dana Garwin

Luxottica Retail

4000 Luzottica Place

Mason, Ohio 45040

Esperanza Gonzale z

1411 Meridian Avenue, Apartment 1

Miami Beach, Florida 33139

Robyn S. Hankins, Esquire

301 Clematis Street, Suite 201

West Palm Beach, Florida 33401

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 agenc y that

will issue the Final Order in this case.