07-005688 Queenie E. Booth vs. Gulfport Liquors Status: Closed DOAH Final Order on Friday, May 30, 2008.

Summary: Petitioner, an African-American female, made a prima facie showing of racial discrimination, and Respondent did not appear and present evidence of reason for an adverse employment action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUEENIE E. BOOTH, )

)

Petitioner, )

)

vs. ) Case No. 07-5688

)

GULFPORT LIQUORS, )

)

Respondent. )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding for the Division of

Administrative Hearings (DOAH) on February 8, 2008, in

St. Petersburg, Florida.

APPEARANCES

For Petitioner: Queenie E. Booth, pro se

Post Office Box 35201

St. Petersburg, Florida 33705

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of her race in violation of Pinellas

County Code Chapter 70 (the Code).

PRELIMINARY STATEMENT

On March 1, 2007, Petitioner timely filed a complaint of

racial discrimination against Respondent with the City of

St. Petersburg, Community Affairs Department, Human Relations

Division (the Department). The Department referred the matter

to DOAH to assign an ALJ to conduct an administrative hearing.

At the hearing, Petitioner testified and submitted one

composite exhibit. Respondent did not appear or present any

evidence.

The description of the exhibits, and any associated

rulings, are set forth in the record of the hearing. Neither

party ordered a transcript of the hearing.

At the conclusion of the hearing, Petitioner and a

representative of the Department stated that they were uncertain

whether either would order a transcript of the hearing, but that

each would decide and notify the ALJ. On March 28, 2008, no

notice regarding the transcript had been filed in the DOAH case

file. The administrative assistant for the undersigned

telephoned the Department to find out if the Department or

Petitioner would be causing the transcript to be filed with

DOAH. On April 8, 2008, the Department representative

telephoned the administrative assistant and indicated no

transcript would be ordered.

No exceptions to the Recommended Order have been filed as

of the date of this Final Order.

FINDINGS OF FACT

1. The Department investigated the complaint of Petitioner

and issued a determination on August 7, 2007, that reasonable

cause exists to believe that Respondent discriminated against

Petitioner on the basis of her race. Petitioner is an African-

American female. At the hearing, Petitioner presented a prima

facie case of discrimination that is undisputed in the

evidentiary record.

2. Respondent is an "employer." Respondent employed

Petitioner from December 19, 2006, through February 16, 2007.

Respondent employs approximately five employees. Respondent was

the only African-American employee.

3. Respondent paid Petitioner at the rate of $7.00 an

hour. Petitioner performed the duties required by the terms of

her employment in a competent and reliable manner. Petitioner

received no complaints from her employer concerning the

performance of her job duties.

4. The first adverse employment action occurred on

January 29, 2007, when Respondent reduced the hours for

Petitioner's shift from 40 hours a week to 24 hours. The second

adverse employment action occurred on February 5, 2007, when

Respondent reduced the hours for Petitioner's shift to 16 hours.

Respondent did not reduce the hours of any Caucasian employee.

5. The final adverse employment action occurred on

February 16, 2007, when Respondent terminated Petitioner's

employment without cause and with no explanation. Respondent

replaced Petitioner with a Caucasian employee who works a

40-hour schedule. No evidence of record shows that Respondent

took any adverse employment action against a Caucasian employee.

6. During the Department's investigation of this matter,

the Department provided Respondent with repeated opportunities

to respond to the allegations, to participate as a party subject

to investigation, and to participate in mediation. Respondent

has not responded to the allegations of racial discrimination.

7. Petitioner submitted no proof of damages other than

lost wages. The Code does not prescribe the methodology for

calculating lost wages and interest. The Department interprets

the Code to mean that Petitioner is entitled to lost wages

through the date of the final order to be issued in this

proceeding plus interest at the statutory rate prescribed by the

chief financial officer of the state in accordance with

Subsection 55.03(1), Florida Statutes (2007).

8. The total amount of lost wages through the date of the

Recommended Order was $16,856.00. The trier of fact calculated

lost wages in the following manner. If Petitioner had suffered

no adverse employment action, Petitioner would have worked

40 hours a week at $7.00 an hour for 62 weeks from January 29,

2007, through the date of the Recommended Order on April 11,

2008, for a total of $17,360.00. That amount is offset by the

wages Petitioner earned after the first and second adverse

employment actions in a total amount of $504.00. The difference

between $17,360.00 and $504.00 is $16,856.00.

9. The total amount of lost wages through the date of this

Final Order, is the $16,856.00 through the date of Recommended

Order, increased by a weekly amount of $280, for seven weeks

from April 11 through May 30, 2008, for a total increase of

$1,960.00. The total amount of lost wages due on the date of

this Final Order is $18,816.00.

10. No reduction to lost wages is made for wages earned by

Petitioner from another employer after the date of the final

adverse employment action on February 16, 2007. Neither

Petitioner nor Respondent submitted any evidence that Petitioner

earned wages from another employer or received unemployment

benefits. The record deprives the trier of fact of a factual

basis for an offset to lost wages owed by Respondent.

11. The website of the chief financial officer prescribes

rates of interest for current and past years to be utilized in

determining interest due on judgments and decrees. The

applicable interest rate for 2007 and 2008 is 11 percent. The

interest rate will apply to the unpaid portion of the amount

determined to be due, if any, in the final order until

Respondent pays the amount due, if any.

12. Petitioner is not entitled to attorney's fees and

costs. Petitioner is pro se and submitted no evidence of having

incurred attorney's fees or other costs.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and the subject

(2007). The parties received adequate notice of the

administrative hearing.

14. Petitioner bears the burden of proving by a

preponderance of the evidence that Respondent intentionally

discriminated against her on the basis of her race. Reeves v.

Sanderson Plumbing Products., Inc. , 530 U.S. 133, 142, 120 S.

Ct. 2097, 2106 (2000). Federal discrimination law may be used

for guidance in evaluating the merits of claims arising under

local jurisdictions. Tourville v. Securex, Inc., Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Elec. Co-op.

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power

Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994).

15. Petitioner can meet her burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1358 (11th Cir.

1999), cert. denied , 529 U.S. 1109 (2000). Direct evidence must

evince discrimination without the need for inference or

presumption. Standard v. A.B.E.L. Services., Inc. , 161 F.3d

1318, 1330 (11th Cir. 1998). In other words, direct evidence

consists of "only the most blatant remarks, whose intent could

be nothing other than to discriminate." Earley v. Champion

Int'l Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990).

16. There is no direct evidence of discrimination in this

case. In the absence of direct evidence, Petitioner must meet

her burden of proof by circumstantial evidence.

17. Circumstantial evidence of discrimination is subject

to the burden-shifting framework of proof established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973); Reed v. A. W. Lawrence & Co., Inc. , 95 F.3d at 1170,

1178 (2nd Cir. 1996). Petitioner must first establish a prima

facie case of discrimination. McDonnell Douglas , 411 U.S. at

802; Munoz v. Oceanside Resorts, Inc. , 223 F.3d 1340, 1345 (11th

Cir. 2000). See Ratliff v. State , 666 So. 2d 1008, 1013 n.6

(Fla. 1st DCA 1996), aff'd , 679 So. 2d 1183 (Fla. 1996) ( citing

Arnold v. Burger Queen Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)).

18. In order to establish a prima facie case of race

discrimination, a preponderance of the evidence must show that

Petitioner is a member of a protected class, that she suffered

an adverse employment action, that she received disparate

treatment compared to similarly-situated individuals in a non-

protected class, and that there is sufficient evidence of bias

to infer a causal connection between her race and the disparate

treatment. Rosenbaum v. Southern Manatee Fire and Rescue Dist. ,

980 F. Supp. 1469 (M.D. Fla. 1997); Andrade v. Morse Operations,

Inc. , 946 F. Supp. 979, 984 (M.D. Fla. 1996). A preponderance

of the evidence establishes a prima facie case that Petitioner

was qualified to perform her job, is a member of a protected

class, received disparate treatment compared to similarly-

situated individuals in a non-protected class, and the alleged

disparate treatment is causally connected to Petitioner's race.

19. Once Petitioner establishes a prima facie case, the

burden shifts to Respondent to articulate a legitimate, non-

discriminatory, reason for the challenged action. Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 257,

101 S. Ct. 1089, 1096 (1981); Munoz , 223 F.3d at 1345;

Turlington v. Atlanta Gas Light Co. , 135 F.3d 1428, 1432 (11th

Cir. 1998), cert. denied , 525 U.S. 962, 119 S. Ct. 405 (1998).

Respondent did not appear at the hearing and did not otherwise

present evidence.

20. Set off, offset, and mitigation of damages from

Petitioner's subsequent employment, if any, are affirmative

defenses in avoidance of liability. Fla. R. Civ. P. 1.110(d).

The failure of Respondent to plead and prove affirmative

defenses, if any, waives the defense and deprives DOAH of

jurisdiction to make findings and conclusions regarding the

affirmative defense. Fla. R. Civ. P. 1.140(h); Udell v. Udell ,

950 So. 2d 528 (Fla. 4th DCA 2007); JoJo's Clubhouse, Inc. v.

DBR Asset Managemnt, Inc. , 860 So. 2d 503 (Fla. 4th DCA 2003).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Respondent is guilty of the racial

discrimination alleged in this proceeding, and Respondent must

pay to Petitioner, no later than June 30, 2008, the amount of

lost wages and interest ordered herein.

DONE AND ORDERED this 30th day of May, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of May, 2008.

COPIES FURNISHED :

Queenie E. Booth

Post Office Box 35201

St. Petersburg, Florida 33705

Theresa Jones

St. Petersburg Department of

Community Affairs

Post Office Box 2842

St. Petersburg, Florida 33731-2842

William C. Falkner, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

Robert J. Molitar

Oar Enterprises, Inc.

4807 22nd Avenue South

St. Petersburg, Florida 33711

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.