07-004430 Nita Jean-Pierre vs. Neiman Marcus Status: Closed Recommended Order on Friday, February 29, 2008.

Summary: Petitioner failed to prove that she was treated differently than a similarly-situated employee and, therefore, failed to prove a prima facie case of employment discrimination. Recommend that the Petition for Relief be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NITA JEAN - PIERRE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4430

)

NEIMAN MARCUS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Novem ber 29, 2007, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: G. William Allen, Jr., Esquire

310 Southeast 13t Street

Fort Lauderdale, Florida 33316

For Respondent: Angelique Groza Lyons, Esquire

Constangy, Brooks & Smith , LLC

100 North Tampa Street, Suite 3350

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether the Respondent committed an unlawful employment

practice by discriminating against the Petitioner on the basis

of na tional origin, 1 in violation of the Florida Civil Rights Act

of 1992, as amended, Section 760.10 et seq., Florida Statutes

(2005). 2

PRELIMINARY STATEMENT

In a Petition for Relief from an Unlawful Employment

Practice filed with the Florida Commission on Hum an Relations

("FCHR") on September 25, 2007, Nita Jean - Pierre charged that

Neiman Marcus had discriminated against her on the basis of

national origin: "I was told since I am Haitian I need more

documents than an American and I was illegal in this country ."

Ms. Jean - Pierre alleged that she was prevented from providing

"original acceptable documents that establish employment

eligibility as per I.N.S. Form I - 9 List C" because "Neiman

Marcus insisted only Green Card [w]as acceptable." The FCHR

transmitted t he petition to the Division of Administrative

Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was held on November 29,

2007.

At the hearing, Ms. Jean - Pierre testified in her own

behalf, and Petitioner's Exhibi ts 1 through 3 and 5 through 9

were offered and received into evidence. Petitioner's

Exhibit 4, the affidavit of Susan Moye, was offered into

evidence, but ruling was withheld on this exhibit to allow the

parties the opportunity to submit written argument in their

proposed recommended orders on the admissibility of the

document. Ms. Jean - Pierre did not address this evidentiary

issue in her proposal, and, based on the arguments presented at

the hearing, the exhibit is rejected. Neiman Marcus presented

the testimony of Donna Bennett and Susan Moye, and Respondent's

Exhibits 7 and 14 were offered and received into evidence. In

addition, the parties offered Joint Exhibits 2 through 5 and 8,

which were received into evidence.

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on December 21, 2007.

Neiman Marcus timely filed its proposed findings of fact and

conclusions of law; Ms. Jean - Pierre was granted an extension

until January 25, 2008, for filing her propo sed findings of fact

and conclusions of law, whic h she filed on January 28, 2008,

together with Petitioner's Summary of Argument. The post -

hearing submittals of the parties have been considered in the

preparation of this Recommended Order.

FINDINGS OF FAC T

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Neiman Marcus Group, Inc., owns and operates specialty

retail stores . Its headquarters a re located in Dallas, Texas.

2 . In the summer of 2005, Neiman Marcus began hiring

personnel to work in a new store that would open in the fall of

2005 in the Town Centre mall in Boca Raton, Florida.

3 . Ms. Jean - Pierre is a permanent resident alien in the

United States. She was born in Haiti in 1970 and entered the

United States in 1983.

4 . In September 2005, Ms. Jean - Pierre was employed as a

sales associate in the accessories section of the Nordstrom

department store in the Town Centre mall when she was approached

by two women who inquired about Chanel sunglasses. They

requested her business card and later called to tell her that

they were very impressed with her sales skills. They asked if

she was interested in working as a sales associate at the new

Neiman Marcus store.

5 . Ms. Jean - Pierre applied for a position with Neiman

Marcus, went through an interview and a drug test, and was hired

to begin work on October 24, 2004.

6 . Hurricane Wilma hit South Florida on October 24, 2005,

and the Neiman Marcus employees were not able to go to the

hiring site during the week following the hurricane. As a

result, the newly - hired employees who were to begin work on

October 24, 2005, including Ms. Jean - Pierre, were told to report

to work on November 1, 2005.

7 . M s. Jean - Pierre's group of newly - hired employees joined

the group of newly - hired employees that were to report to work

on October 31, 2005. Because there were a large number of

people, they were split in two groups. Ms. Jean - Pierre's group

went to the sto re site to begin training on the first day they

reported for work, while the other group reported to the hiring

center to receive training and to complete the paperwork

required of newly - hired employees. Ms. Jean - Pierre's group went

to the hiring center o n November 3, 2005, for training and to

complete their paperwork.

8 . All newly - hired employees of Neiman Marcus are required

to complete an Immigration and Naturalization Service Employment

Eligibility Verification form, known as the "I - 9 Form." The

I - 9 Form consists of three pages . The first page is divided

into three sections, two of which must be completed for newly -

hired employees. The second page consists of the instructions

for completing the I - 9 Form, and these instructions "must be

available d uring completion of this form." The third page is

headed "Lists of Acceptable Documents" and consists of List A,

List B, and List C.

9 . Section 1 on the front of the I - 9 Form, Employee

Information and Verification, must be completed and signed by

the emp loyee. The employee must include his or her name,

address, maiden name (if applicable), date of birth, social

security number, and an attestation, given "under penalty of

perjury," that the employee is either a "citizen or national" of

the United States, a "Lawful Permanent Resident," or an "Alien

authorized to work" in the United States.

10 . Section 2 of the I - 9 Form, Employer Review and

Verification, must be completed and signed by the employer. The

employer is required to examine one document from Lis t A

("Documents that Establish Both Identity and Employment

Eligibility"), or one document from List B ("Documents that

Establish Identity") and one document from List C ("Documents

that Establish Employment Eligibility"). The document or

documents provid ed by the employee must be listed in Section 2,

and the employer or a representative of the employer must sign

the form, attesting, "under penalty of perjury," that he or she

has "examined the document(s) presented by the above - named

employee, that the abo ve listed document(s) appear to be genuine

and to relate to the employee named, that the employee began

employment of (month/day/year) ___ and that to the best of my

knowledge the employee is eligible to work in the United

States."

11 . The "Instructions" sheet that must be available during

completion of the I - 9 Form directs the employee to complete

Section 1 of the form "at the time of hire, which is the actual

beginning of employment." The instructions direct the employer,

in pertinent part, to

complete Section 2 by examining evidence of

identity and employment eligibility within

three (3) business days of the date

employment begins. If employees are

authorized to work, but are unable to

present the required document(s) within

three business days, they m ust present a

receipt for the application of the

document(s) within three business days and

the actual document(s) within ninety (90)

days. . . . Employers must record

1) document title; 2) issuing authority; 3)

document number; 4) expiration date, if any;

and 5) the date employment begins.

Employers must sign and date the

certification. Employees must present

original documents. Employers may, but are

not required to, photocopy the document(s)

presented. These photocopies may only be

used for the verif ication process and must

be retained with the I - 9.

(Emphasis in original.)

12 . When newly - hired employees report to the hiring site

for training, they are placed at a computer to type in the

information required in Section 1 of the I - 9 Form. It is Neim an

Marcus 's policy to provide all newly - hired employees, at the

time they are completing Section 1 at the computer , a copy of

the page setting forth the "Lists of Acceptable Documents , " with

a copy of the "Instructions" page stapled to that document.

When the information required in Section 1 is complete, the I -

9 Form prints out of the computer with the employee's

information included. The employee signs the form, and the

Neiman Marcus representative examines the documents presented by

the employee and co mpletes and signs Section 2 of the I - 9 Form.

13 . Neiman Marcus requires all newly - hired employees to

present original documents from List A or List B and List C for

verification within 72 hours of the beginning of employment. If

an employee fails to prov ide the necessary original documents or

a receipt for the application of the documents within the 72 -

hour timeframe, it is Neiman Marcus's policy to suspend the

employee's employment with Neiman Marcus and to allow them a

week to provide documents required for identification and

employment verification . If the newly - hired employee is unable

to produce the necessary documents, the employee is terminated,

but the employee is advised that they are welcome to re - apply

for a job when they are able to produce th e original documents

that satisfy the requirements on the I - 9 Form.

14 . It is not Neiman Marcus's policy to specify the

documents a newly - hired employee must present to verify his or

her identity and employment eligibility. Rather, Human Resource

Manager s at the various Neiman Marcus stores have been told not

to specify any document that must be produced to satisfy the

identification and employment verification requirements on the

I - 9 Form.

15 . Donna Bennett is, and was at the times pertinent to

this pro ceeding, the Human Resource Manager for the Neiman

Marcus store in Boca Raton. Amy Wertz was the Human Resources

Coordinator and worked for Ms. Bennett at the times pertinent to

this proceeding.

16 . When Ms. Jean - Pierre reported to the hiring center on

N ovember 3, 2005, she completed Section 1 of the I - 9 Form on the

computer provided by Neiman Marcus and , to verify her identity,

presented her Florida driver's license to Ms. Wertz, who was the

Neiman Marcus representative verifying employment eligibility

f or the newly - hired Neiman Marcus employees in Ms. Jean - Pierre's

group. Ms. Jean - Pierre advised Ms. Wertz that her "Green Card" 3

and her Social Security card had been in her car, which was

stolen from the parking lot of her condominium building after

the H urricane Wilma .

17 . Ms. Jean - Pierre did not provide Ms. Wertz an original

document from either List A or List C to verify her employment

eligibility on November 3, 2005. She did give Ms. Wertz her

Social Security number and a copy of her Permanent Reside nt

C ard, income tax return, and pay stub from her previous

employment. Ms. Wertz would not accept these documents for

purposes of satisfying the I - 9 Form requirement of verification

of employment eligibility.

18 . On November 3, 2005, Ms. Wertz advised Ms . Bennett

that Ms. Jean - Pierre had failed to produce the original document

from List A or List C required to verify her employment

eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean -

Pierre home to look for an original document that would satisfy

the requirements for establishing her employment eligibility.

19 . Ms. Jean - Pierre reported for work on November 4, 2005,

without an original document from List A or List C. Ms. Bennett

went to the official website of the United States Citizenship

and Im migration Services to verify the government policy on the

production of documentation to establish employment eligibility.

20 . After reviewing the information on the website,

Ms. Bennett advised Ms. Jean - Pierre that, if she produced a

receipt showing she had applied for a replacement document among

those on List A or List C, she could have an additional 90 days

in which to produce the original document. Ms. Bennett did not

contact Neiman Marcus's corporate legal department with regard

to this information before she passed it on to Ms. Jean - Pierre.

21 . On November 5, 2005, Ms. Jean - Pierre provided either

Ms. Wertz or Ms. Bennett a document printed from the United

States Citizenship and Immigration Services website entitled

"I - 90 Form: Application to Repla ce Permanent Resident Card " and

told them that she had an appointment with the Immigration and

Naturalization Service at the end of November 2005 . 4

22 . Ms. Bennett believed that this document was a n

acceptable receipt for an application for a replacement

document , and she advised Ms. Jean - Pierre that she had 90 days

from November 5, 2005, in which to produce the original

document. A notation was made on the I - 90 Form that "[y]ou have

90 days from today."

23 . Ms. Bennett did not consult with anyone at Nei man

Marcus corporate headquarters regarding the sufficiency of the

document provided by Ms. Jean - Pierre or receive authorization to

allow Ms. Jean - Pierre an additional 90 days in which to produce

the original document.

24 . In late November 2005, Ms. Wertz told Ms. Bennett that

Ms. Jean - Pierre had missed her appointment with the Immigration

and Naturalization Service because of a death in her family.

Ms. Bennett became concerned that Ms. Jean - Pierre did not take

seriously the requirement that she provide o riginal documents to

establish her employment eligibility within the 90 - day grace

period, which, according to Ms. Bennett's understanding, began

to run on November 5, 2005. Ms. Bennett called Ms. Jean - Pierre

into her office and spoke with her about the im portance of

providing the necessary original documentation. Ms. Jean - Pierre

told her that she would take care of the matter.

25 . On or about December 15, 2005, Ms. Jean - Pierre

produced to Ms. Bennett a document identified as a Citizens and

Immigration Se rvices form I - 797C, Notice of Action. The "Case

Type" specified on the document was "I - 90 Application to Replace

Alien Registration Card"; the "Receipt Number" noted on the

document was "MSC - 06 - 800 - 46861" the date on which the

application was received was noted as December 14, 2005; the

applicant was identified as "A37 888 854 Jean - Pierre, Nita"; and

the "Notice Type" specified on the document was "Receipt

Notice."

26 . When she gave Ms. Bennett this document, Ms. Jean -

Pierre told Ms. Bennett that it would take between six months

and one year to receive the replacement card because of

September 11, 2001. Ms. Bennett became concerned that Ms. Jean -

Pierre would not be able to provide the required original

docum ent within the 90 - day grace period. At this tim e, she

contacted Susan Moye, a manager in Associate Relations at Neiman

Marcus's corporate headquarters in Dallas, Texas, and arranged

to have the I - 797C form faxed to Ms. Moye.

27 . Ms. Moye consulted with Neiman Marcus's legal

department about the suffic iency of the I - 797C Form Ms. Jean -

Pierre had provided on December 15, 2005 . Ms. Moye was advised

that this document was not sufficient to meet the I - 9 Form

requirement that the employer examine the original of one of the

documents included on List A or Li st C to verify employment

eligibility.

28 . Ms. Bennett was absent from work for a period of time

due to the illness and death of her father. During her absence,

Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean -

Pierre 's employment status . Ms. Moye directed Ms. Wertz to

notify Ms. Jean - Pierre that the I - 797C f orm she had provided was

not sufficient to verify her employment eligibility and that she

was suspended from employment for one week to give her the

opportunity to obtain an acceptable original document.

29 . Ms. Jean - Pierre did not provide the required

documentation by the end of the one - week period of her

suspension.

30. M s. Bennett returned to work on December 27, 2005.

Ms. Bennett spoke with Ms. Moye about the matter on December 27 ,

2005, and Ms. Moye told her that Ms. Jean - Pierre needed to

provide an original document in order to establish her

eligibility for employment and that the document Ms. Jean - Pierre

had provided on December 15, 2005, was not an acceptable

original document. Ms. Moye advised Ms. Bennett that she would

need to terminate Ms. Jean - Pierre.

31 . At the time she directed Ms. Bennett to terminate

Ms. Jean - Pierre, Ms. Moye was not aware of Ms. Jean - Pierre's

race or national origin. 5

32 . Ms. Bennett called Ms. Jean - Pierre into her office and

explained to her that it was Neiman Marcus's policy to require

original documentation of identification and employment

eligibility within three days of beginning employment ; that the

document she provided on December 15, 2005, wa s unacceptable ;

and that she was terminated.

33 . During this meeting, Ms. Jean - Pierre argued that the

document she had provided on December 15, 2005, was acceptable.

Ms. Bennett explained to Ms. Jean - Pierre that , in accordance

with Neiman Marcus's policy, she needed to produce the original

document, not the receipt for an application for a replacement

document.

34 . When she terminated Ms. Jean - Pierre, Ms. Bennett told

her that she was welcome to re - apply for a job when she was able

to produce the appropri ate documents to establish her employment

eligibility.

35 . Ms. Bennett did not tell Ms. Jean - Pierre that a "Green

Card" was the only acceptable document to establish her

employment eligibility. Nor did she tell Ms. Jean - Pierre that

she needed to provide more documentation than others because she

was Haitian.

36 . In January 2006, Ms. Jean - Pierre returned to the

Neiman Marcus Boca Raton store and provided Ms. Bennett with a

receipt showing that she had applied for a Social Security card

on January 10, 2006 . Ms. Bennett faxed this document to

Ms. Moye , who responded that the receipt was insufficient and

that Ms. Jean - Pierre needed to produce an original document.

37 . On January 5, 2006, Ms. Jean - Pierre obtained a stamp

on her passport indicating that emplo yment was authorized for

her, which authorization would expire on January 4, 2007.

38 . Ms. Jean - Pierre received her replacement Social

Security card on January 16, 2006 .

39 . Ms. Jean - Pierre did not present an original Social

Security card to Neiman Marcu s or her stamped passport to Neiman

Marcus as verification of her employment eligibility.

40 . Ms. Bennett has previously terminated newly - hired

employees who failed to timely provide the documents required to

establish employment eligibility. Those emplo yees were invited

to re - apply when they received their original documents.

Several re - applied, provided their original documents, and were

re - hired.

41 . Of the more than 5 9 newly - hired employees reporting to

work on or about November 1, 2005, Ms. Jean - Pi erre was the only

employee who failed to produce to Neiman Marcus the required

original documentation verifying her employment eligibility.

Summary

42 . The direct evidence presented by Ms. Jean - Pierre is

not sufficient to establish that Neiman Marcus dis criminated

against her on the basis of her national origin. Ms. Wertz and

Ms. Bennett were aware that Ms. Jean - Pierre was from Haiti

residing in the United States, but the evidence establishes that

both Ms. Wertz and Ms. Bennett were concerned about her f ailure

to produce any original documents as required for verification

of employment eligibility and that Ms. Bennett talked to her

about the seriousness of the issue and urged her to get the

necessary document. Ms. Jean - Pierre's testimony that

Ms. Bennett told her she needed more documentation because she

was a Haitian is unsupported by any other testimony or

documentary evidence. Finally, Ms. Moye, the person who

directed Ms. Bennett to terminate Ms. Jean - Pierre, was not aware

that she was born in Haiti.

43 . Ms. Jean - Pierre's testimony that both Ms. Wertz and

Ms. Bennett insisted she must provide a "Green Card" to verify

her permanent residence is, likewise, unsupported by any other

testimony or documentary evidence. In any event, this evidence

would no t, of itself, establish that either Ms. Wertz or

Ms. Bennett w as motivated by the intent to discriminate against

Ms. Jean - Pierre because she is Haitian. T he evidence presented

is sufficient , however, to support an inference that Ms. Jean -

Pierre misunderst ood the information she received from Ms. Wertz

and Ms. Bennett and assumed that they were referring to an

original Permanent Resident Card rather than an original

document included on the "Lists of Acceptable Documents." 6

Ms. Jean - Pierre acknowledged in her testimony that, when

Ms. Wertz told her she needed to verify her permanent residence,

she interpreted this to mean that she needed to get a

replacement copy of her Permanent Resident Card. Similarly,

Ms. Jean - Pierre may have interpreted Ms. Bennett's statements

that she needed to produce an original document as requiring

that she produce a Permanent Resident Card.

44 . The evidence presented by Ms. Jean - Pierre is

sufficient to establish that Ms. Jean - Pierre is entitled to

protection from employment dis crimination on the basis of her

national origin; that she was qualified for the position of

sales associate with Neiman Marcus; and that she was subjected

to an adverse employment action because she was terminated from

her employment. Ms. Jean - Pierre stat ed unequivocally in her

testimony , however, that she did not know of any other person

who failed to verify their employment eligibility that was

allowed to work at Neiman Marcus. She has, therefore, failed to

establish a prima facie case of employment dis crimination.

CONCLUSIONS OF LAW

45 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Statutes (2005 ).

46 . Section 760.10, F lorida Statutes, part of the Florida

Civil Rights Act of 1992, as amended, provides in pertinent

part:

(1) It is an unlawful employment practice

for an employer:

(a) 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 or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

47 . Florida courts routinely rely on decision s of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Section 2000e et seq. , United States

Code, ("Title VII"), when construing the Florida Civil Rights

Act of 1992, "because the Florida act was patterned after

Title VII." Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385, 1387 (11th Cir. 1998), citing, inter alia , Ranger

Insurance Co. v. Bal Harbor Club, Inc. , 549 So. 2d 1005, 1009

(Fla. 1989), and Florida State University v. Sondel , 685 So. 2d

923, 925 , n. 1 (Fla. 1st DCA 1996) .

48 . Ms. Jean - Pierre has the burden of proving by a

preponderance of the evidence that she was the victim of

employment discrimination, and she can establish discrimination

either through direct evidence of discrimination or thr ough

circumstantial evidence, which is evaluated within the framework

of the burden - shifting analysis first articulated in McDon nell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 04 (1973). See Logan

v. Denny's Inc. , 259 F.3d 558, 566 - 67 (11th Cir. 200 1 ).

49 . "Direct evidence of discrimination is 'evidence which,

if believed, would prove the existence of a fact [in issue]

without inference or presumption.' . . . 'Only the most blatant

remarks, whose intent could be nothing other than to

discriminate on the ba sis of [national origin ] constitute direct

evidence of discrimination.' . . . 'For statements of

discriminatory intent to constitute direct evidence of

discrimination, they must be made by a person involved in the

challenged decision. ’ . . .'Remarks by no n - decision makers or

remarks unrelated to the decision - making process itself are not

direct evidence of discrimination.' ” Bass v. Board of County

Comm'rs, Orange County, Florida , 256 F .3d 1095, 1105 (11th Cir.

2001)(citations omitted).

50 . Based on the f indings of fact herein, Ms. Jean - Pierre

has presented no persuasive direct evidence that she was

discrimi nated against because of her national origin. Ms. Moye

was the person who directed Ms. Bennett to terminate Ms. Jean -

Pierre, and there is no evidence whatsoever that Ms. Moye was

aware of Ms. Jean - Pierre's national origin. Ms. Jean - Pierre's

testimony that Ms. Bennett told her that she needed " more "

documentation because she was Haitian is not persuasive.

Finally, even if Ms. Bennett had told Ms. Jean - Pierre that the

only document she could use to verify her employment eligibility

was a Permanent Resident Card, such a statement may be contrary

to the information provided on the I - 9 Form and the "Lists of

Acceptable Documents," but it is not evidence tha t Ms. Bennett

intended to discriminate against Ms. Jean - Pierre on the basis of

her national origin.

51 . In the absence of direct evidence of discrimination ,

Ms. Jean - Pierre must rely on the presumption set forth in

McDonnell Douglas to establish a prima f acie case of

discrimination on the basis of national origin by showing that

( 1) she is a member of a protected class ; (2) she suffered an

adverse employment action; (3) she was qualified to do th e job;

and (4) she was treated differently than other, simila rly

situated Neiman Marcus employees . See Haas v. Kelly Servs.

Inc. , 409 F.3d 1030, 1035 (8th Cir. 2005); Chapman v. AI

Transp. , 229 F.3d 1012, 1024 (11th Cir. 2000). If Ms. Jean -

Pierre satisfies her burden of proving a prima facie case of

discrimination on the basis of national origin, the burden of

producing evidence then shifts to Neiman Marcus to produce

evidence articulating "a legitimate, non - discriminatory reason"

for terminating Ms. Jean - Pierre. Id. If Neiman Marcus,

establishes a legitimate, no n - discriminatory reason for

terminating Ms. Jean - Pierre, Ms. Jean - Pierre must produce

evidence to prove that the non - discriminatory reason offered by

Neiman Marcus is pretext. Jones v. School Dist. of

Philadelphia , 198 F.3d 403, 410 (3d Cir. 1999).

52 . B ased on the findings of fact herein, there is no

dispute that Ms. Jean - Pierre is a member of a class of persons

protected by Section 760.10, Florida Statutes; that she was

qualified to work as a sales associate for Neiman Marcus; and

that she was terminate d from this position. The first three

elements of a prima facie case of employment discrimination have

been satisfied. Nonetheless, Ms. Jean - Pierre has failed to meet

her burden of establishing a prima facie case of discrimination

on the basis of nationa l origin because she has presented no

evidence that she was treated differently by Neiman Marcus than

any other newly - hired employee .

53 . Because Ms. Jean - Pierre has failed to establish a

prima facie case of discrimination on the basis of national

origin, Neiman Marcus is not required to produce evidence of a

legitimate, non - discriminatory reason for terminating Ms. Jean -

Pierre.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Commission on Huma n

Relations enter a final order dismissing the Petition for Relief

from an Unlawful Employment Practice filed by Nita Jean - Pierre

on September 20, 2007.

DONE AND ENTERED this 29th day of February , 200 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 29th day of February, 2008 .

ENDNOTES

1 / It is noted that, in her Employ ment Complaint of

Discrimination, Ms. Jean - Pierre identified both race and

national origin as the bases for her complaint. As set forth in

the Preliminary Statement, Ms. Jean - Pierre did not include a

claim of discrimination on the basis of race in her Pet ition for

Relief from an Unlawful Employment Practice.

2 / All citations to the Florida Statutes herein are to the 2005

edition unless otherwise indicated.

3 / This is synonymous with the Permanent Resident Card.

4 / Ms. Bennett's testimony that she rev iewed the application and

mistakenly believed that Ms. Jean - Pierre was applying for a

replacement Social Security card is not credited. The document

clear states at the top that it is an "Application to Replace

Permanent Resident Card."

5 / Ms. Jean - Pier re argued in her post - hearing submittal that

Ms. Moye was aware of Ms. Jean - Pierre's national origin because

Ms. Bennett faxed Ms. Moye a copy of the I - 90 Application to

Replace Permanent Resident Card that Ms. Jean - Pierre had

provided Ms. Bennett on Novem ber 5, 2005, and that this document

indicated that she was born in Haiti. The evidence establishes,

however, that Ms. Bennett faxed Ms. Moye the I797C form, which

does not include the country of Ms. Jean - Pierre's birth.

6 / Ms. Jean - Pierre testified that she did not receive a copy of

the "Lists of Acceptable Documents" or a copy of the I - 9 Form

"Instructions" when she was completing the I - 9 Form. She did,

however, find a copy of the "Lists of Acceptable Documents" in a

pile of papers she reviewed after h er termination, and she

conceded that she received the "Lists of Acceptable Documents"

from Neiman Marcus "two or three weeks" after she began work.

As a result, even if she were initially unaware that documents

other than a Permanent Resident Card were a cceptable to

establish her employment eligibility, she knew or should have

known that other original documents were also acceptable.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Angelique Groza Lyons, Esquire

Constangy, Brooks & Smith, LLC

100 North Tampa Street, Suite 3350

Tampa, Florida 33602

G. William Allen, Jr., Esquire

310 Southeast 13th Stre et

Fort Lauderdale, Florida 33316

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalchee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written

exc eptions 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.