10-000958 Janice Jennings vs. Superior Optical Shop Status: Closed Recommended Order on Thursday, July 29, 2010.

Summary: Petitioner failed to prove a prima facie case of discrimination based on race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANICE JENNINGS, )

)

Petitioner, )

)

vs. ) Case No. 10-0958

)

SUPERIOR OPTICAL SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

May 24, 2010, in Lake City, Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John F. Mayo, Qualified Representative

Post Office Box 912

Lake City, Florida 32056

For Respondent: M. Todd Hingson, Esquire

Avera & Smith, LLP

248 North Marion Avenue, Suite 102

Lake City, Florida 32055

STATEMENT OF THE ISSUE

Whether Respondent, Superior Optical Shop (Respondent),

violated the Florida Civil Rights Act of 1992, Sections 760.01–

760.11 and 509.092, Florida Statutes, by subjecting Petitioner,

Janice Jennings (Petitioner), to discrimination in employment

and by discharging Petitioner in retaliation for Petitioner’s

opposition to Respondent’s discriminatory employment practices.

PRELIMINARY STATEMENT

On October 11, 2009, Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

(the Commission), Charge No. 2009022897 (Charge of

Discrimination). In the Charge of Discrimination, Petitioner

alleges that she was subjected to different terms and conditions

of employment, denied proper training, and harassed because of

her race during her employment with Respondent. The Charge of

Discrimination further alleges that Petitioner was discharged

from her employment with Respondent in retaliation for opposing

Respondent’s discriminatory practices.

After investigating Petitioner’s allegations, on

January 18, 2010, the Commission issued a Determination of No

Cause, signed by the Commission’s Executive Director, finding

that, based upon the report of investigation, no reasonable

cause exists to believe that an unlawful employment

discrimination practice occurred. The Determination of No Cause

also notified Petitioner of her right to file a Petition for

Relief for a formal administrative proceeding within 35 days of

the Notice. On February 17, 2010, Petitioner filed a Petition

for Relief and, on February 22, 2010, the Commission forwarded

the petition to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct an

administrative hearing.

At the administrative hearing held on May 24, 2010,

Petitioner testified on her own behalf, and called three

witnesses. Petitioner did not offer any exhibits into evidence.

Respondent presented the testimony of the same three witnesses

called by Petitioner and offered three exhibits which were

received into evidence as Respondent’s Exhibits “R-1” through

“R-3.”

The proceedings were recorded and a transcript was ordered.

The parties initially were given 10 days from the filing of the

transcript within which to submit their respective Proposed

Recommended Orders. Following the filing of the transcript on

June 9, 2010, by order granting Respondent’s request for

additional time, the time within which to file Proposed

Recommended Orders was extended until June 29, 2010. Respondent

timely filed its Proposed Recommended Order on June 29, 2010.

Although not filing a proposed recommended order, on June 3,

2010, Petitioner filed a written document entitled “Closing

Statement.” Respondent’s Proposed Recommended Order and

Petitioner’s written Closing Statement were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African-American female.

2. Respondent is a corporation with its corporate

headquarters located in Ocean Springs, Mississippi. Respondent

operates an optical shop in a Veteran’s Administration (V.A.)

Hospital located in Lake City, Florida.

3. At its Lake City location, Respondent fills

prescriptions written by eye physicians at the V.A. Hospital,

assists patients with choosing frames, and fits patients with

their prescription eye glasses.

4. Respondent’s optical shop in Lake City is fast-paced,

with a constant stream of patients, averaging 50-to-60 patients

a day. If the optical shop is running behind schedule, it is

problematic because often physicians at the V.A. Hospital are

waiting to see the patients served by the optical shop.

5. In 2009, Petitioner interviewed for a position at

Respondent’s optical shop in Lake City, Florida. During her

interview, Petitioner advised Respondent that she had competent

computer skills and significant experience working in an office

environment and with eye doctors.

6. On May 27, 2009, Respondent hired Petitioner as a part-

time clerk at the optical shop. Petitioner was terminated prior

to working 90 days for Respondent. When Petitioner was hired,

two full-time employees worked at the optical shop: office

supervisor, Jean Hartup, and optician, Kathleen Denton.

7. Ms. Hartup has been employed with Respondent for

approximately five years. Ms. Denton has been with the optical

shop for approximately two and a-half years.

8. As office supervisor, Ms. Hartup can be distant with

speaking to employees. Ms. Hartup demonstrates these traits

with all of the employees at the optical shop.

9. Ms. Hartup has written up Ms. Denton in the past and

the two have had personality conflicts.

10. Both Ms. Hartup and Ms. Denton assisted with training

Petitioner. Evidence indicated that Petitioner received

adequate training to perform the tasks she was assigned to

perform as a clerk. She often had to be re-trained on the same

tasks.

11. Respondent’s optical shop in Lake City is a very small

room, approximately ten-feet by ten-feet square inside the V.A.

Hospital. There are two small desks in the shop and it is very

crowded.

12. Petitioner was aware of the small working environment

at the time she accepted employment with Respondent as a part-

time clerk.

13. Past and present employees at the optical shop have

had to share desk space. Sometimes work has to be performed in

the hallway because of the small office space.

14. All new hires for Respondent are subjected to a 90-day

probationary period. As explained in Respondent’s “Employee

Handbook of Office Policies and Benefits,” of which Petitioner

was aware:

There will be a 90-day probationary period

during which time the employer may terminate

the employee at any time for any reason or

for no reason regardless of any other

provision of these policies. Sick leave and

personal days are accrued but cannot be used

during this period.

15. Respondent’s Employee Handbook of Office Policies and

Benefits also provides:

[Respondent] does not and will not tolerate

any employee discriminating against their

work peers for any reason i.e., race, color,

religion, sex, national origin or handicap.

Any known verifiable discrimination will be

grounds for immediate termination.

16. Once on the job, Petitioner was not proficient on the

computer and, despite repeated training, failed to show any

improvement and was slow in performing her job duties. Because

of this, service to patients at the optical shop slowed down and

the optical shop was frequently behind, resulting in physicians

having to wait for patients being served by the optical shop.

17. Ms. Hartup became frustrated with Petitioner’s

unsatisfactory job performance and the resulting delays. In

addition, Petitioner began to show a lack of interest in her job

and even stated that she “didn’t really need a job; she just

wanted to be out of the house.”

18. Despite repeated training and opportunities to improve

her work performance, Petitioner failed to improve. Petitioner

was given a notebook with information from the American Board of

Opticians for review but she failed to read it or return it to

Respondent.

19. Prior to the end of her employment with Respondent,

Petitioner called Respondent’s corporate headquarters in

Mississippi and spoke to Mary Walker. Petitioner complained to

Ms. Walker that Ms. Hartup was being too hard, was impatient,

and was expecting too much of her. Petitioner did not raise

concerns with Ms. Walker that she was being discriminated

against based on her race, or that she had been subjected to a

hostile work environment because of her race. In fact, there is

no evidence that Petitioner ever complained of race

discrimination or a hostile work environment based on race

discrimination while she was still employed by Respondent.

20. During that first telephone conversation with

Petitioner, Ms. Walker suggested to Petitioner that she should

talk to Ms. Hartup about the problems. Petitioner assured

Ms. Walker that she would.

21. Two days later, Ms. Walker called Ms. Hartup and

inquired whether Petitioner had discussed her concerns with

Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup

about her complaint.

22. Ms. Walker gave Ms. Hartup the authority to run the

optical shop at Lake City, including making hiring and firing

decisions. Ms. Walker did not discipline Ms. Hartup because of

Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to

handle the situation regarding Petitioner’s complaints.

23. Ms. Hartup then met with Petitioner and they spoke

about Petitioner’s concerns that Ms. Hartup was being too harsh

and about Petitioner’s poor work performance. As a result of

that meeting, Ms. Hartup felt the situation had been resolved.

24. Petitioner subsequently advised both Ms. Denton, as

well as Ms. Walker at Respondent’s headquarters, that the

conversation with Ms. Hartup had gone well and that their issues

had been resolved.

25. Petitioner’s work performance, however, did not

improve. Prior to the end of her 90-day probationary period of

employment, Respondent terminated Petitioner from employment for

poor work performance, for failing to reach her capabilities as

an employee, and because her poor work performance was a

detriment to Respondent’s Lake City optical shop.

26. Petitioner testified that, from her point of view, she

truly felt as though she had been discriminated against because

of her race. That testimony, however, was without further

support and was unpersuasive, especially in view of the fact

that there is no evidence that Petitioner ever mentioned to

anyone during her employment with Respondent that she believed

she was being discriminated against.

27. There was otherwise no evidence presented at the final

hearing that would support a finding that Respondent’s decision

to terminate Petitioner was in retaliation for Petitioner’s

complaint against Ms. Hartup. Further, the evidence produced at

final hearing does not support a finding that either the manner

in which Petitioner was treated during her employment with

Respondent, or her termination from that employment, was based

on Petitioner’s race.

28. Respondent filled the position of part-time clerk left

vacant after Petitioner’s termination by hiring a Native-

American male.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009), 1 / and Florida Administrative Code Rule

60Y-4.016(1).

30. The State of Florida, under the legislative scheme

contained in Sections 760.01–760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti-discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq.

31. The Florida law prohibiting unlawful employment

practices is found in Section 760.10, Florida Statutes. This

section prohibits discrimination “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.”

§ 760.10(1)(a), Fla. Stat.

32. Florida courts have held that decisions construing

Title VII of the Civil Rights Act of 1964, as amended, should be

used as guidance when construing provisions of the Act. See ,

e.g. , Florida Department of Community Affairs v. Bryant , 586 So.

2d 1205 (Fla. 1st DCA 1991).

33. Generally, for discrimination in employment claims,

the federal courts have utilized a three-part “burden of proof”

pattern developed in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S. Ct. 1817 (1973). Under that pattern:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to “articulate some legitimate,

nondiscriminatory reason” for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

McDonnell Douglas , 411 U.S. at 802, 804, 93 S. Ct. at 1824,

1825.

34. Therefore, in order to prevail in her claim against

Respondent, Petitioner must first establish a prima facie case

by a preponderance 2 / of the evidence. McDonnell Douglas ,

411 U.S. at 802; § 120.57(1)(j), Fla. Stat.

35. To establish a prima facie case, Petitioner must prove

that (1) she is a member of a protected class ( e.g. , African-

American); (2) she was subject to an adverse employment action;

(3) her employer treated similarly-situated employees, who are

not members of the protected class, more favorably; and (4) she

was qualified for the job or benefit at issue. See McDonnell

Douglas , supra .

36. Although, as an African-American, Petitioner is a

member of a protected class, Petitioner failed to show by a

preponderance of the evidence the other elements required to

present a prima facie case.

37. Although alleged in Petitioner’s Charge of

Discrimination, the evidence failed to show that Petitioner was

subjected to different terms and conditions of employment,

denied proper training, or subjected to harassment or adverse

employment action because of her race. Further, considering

evidence that Petitioner was unable to timely perform the duties

for which she was hired, Petitioner also failed to show that she

was qualified for the job.

38. In addition, other than her own speculative belief,

Petitioner submitted no evidence to support her contention that

she was discriminated against because of her race. Mere

speculation or self-serving belief on the part of a complainant

concerning the motives of a respondent is insufficient, standing

alone, to establish a prima facie case of intentional

discrimination. See Lizardo v. Denny’s, Inc. , 270 F.3d 94, 104

(2d Cir. 2001)(“Plaintiffs have done little more than cite to

their mistreatment and ask the court to conclude that it must

have been related to their race. This is not sufficient.”).

39. In sum, Petitioner failed to present a prima facie

case. “Failure to establish a prima facie case of race

discrimination ends the inquiry.” Ratliff v. State , 666 So. 2d,

1008, 1013 n.6 (Fla. 1st DCA 1996)(citations omitted).

40. While perhaps appropriate to apply in some contexts,

in this case, as Petitioner has failed to make out even a prima

facie case, the shifting of burden pattern has not been further

applied or elaborated in this Recommended Order.

41. Petitioner failed to prove her Charge of

Discrimination and it is otherwise concluded, based upon the

evidence, that Respondent, Superior Optical Shop, did not

violate the Florida Civil Rights Act of 1992, Sections 760.01–

760.11 and 509.092, Florida Statutes, and is not liable to

Petitioner, Janice Jennings, for discrimination in employment,

or retaliatory discharge while she was employed by Respondent.

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 Petitioner’s Charge of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND ENTERED this 29th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2010.

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version. All references to Florida

Administrative Code or federal statutes and rules are to their

current, effective versions.

2 / A preponderance of the evidence is “the greater weight of the

evidence,” or evidence that “more likely than not” tends to

prove her case. See Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000).

COPIES FURNISHED :

John F. Mayo, Qualified Representative

Post Office Box 912

Lake City, Florida 32056

M. Todd Hingson, Esquire

Avera & Smith, LLP

248 North Marion Avenue, Suite 102

Lake City, Florida 32055

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.