STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY MICHAEL SHIPP, )

)

Petitioner, )

and )

) FLORIDA COMMISSION ON HUMAN ) RELATIONS, )

)

Intervenor/Petitioner, )

)

vs. ) CASE NO. 80-737

) KAISER ALUMINUM AND CHEMICAL ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on July 16, 1980, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: W. Benjamin Kyle, Esquire

1248 West Edgewood Avenue Jacksonville, Florida 32208

For Intervenor/ Marva A. Davis, Esquire Petitioner: Assistant General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle East Tallahassee, Florida 32301

For Respondent: Robert J. Allen, Jr., Esquire

Chief Labor Counsel

Kaiser Aluminum and Chemical Corporation

300 Lakeside Drive Oakland, California 94643

These proceedings began on April 11, 1979, when Petitioner Danny Michael Shipp filed a complaint of discrimination with the Florida Commission on Human Relations (Commission). His complaint alleged that Kaiser Aluminum and Chemical Corporation (Kaiser) discriminated against him on account of his race. A determination of reasonable cause was made on February 18, 1980. Conciliation between the parties did not result in agreement; therefore, on March 10, 1980, a Notice of Failure of Conciliation was sent to the parties. Thereafter, Mr.

Shipp filed his Petition for Relief on April 8, 1980. The case was forwarded to

the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of the final hearing.

Subsequently, Norman A. Jackson as Executive Director for the Commission requested leave to intervene. This motion was erroneously granted by the undersigned Hearing Officer at the final hearing. As reflected by the statutes establishing the Commission and the rules promulgated thereunder, Mr. Jackson is merely an employee and agent of the Commission. Section 23.163(7), Florida Statutes, (Supp. 1980); Section 23.166(7), Florida Statutes (1979); Section 9D- 6.04(2), Florida Administrative Code. Mr. Jackson has no independent legal staff. Section 9D-6.04(1)(b) and (3)(a), Florida Administrative Code. Were he disappointed with a final order entered by the Commission, he could certainly not appeal it. Cf. School Board of Collier County v. Steele, 384 So.2d 1166, 1165 (Fla. 1st D.C.A. 1977). In short, apart from the Commission, he has none of the attributes of a "person" sufficient to allow him to become an individual intervenor in these proceedings. Section 28-5.027, Florida Administrative Code. Any interests he seeks to represent here are those of the Commission; therefore, the style of the case is amended to reflect the Commission as the Intervenor and the Order Granting Leave to Intervene is modified accordingly.

At the final hearing, Petitioner offered only himself as his witness. He offered Exhibits 1-7 into evidence. Exhibits 1-5 and 7 were received into evidence at the hearing. Exhibit 6 will be discussed in the Conclusions of Law following. The Commission did not present any witnesses or exhibits.

Respondent presented Mr. L. M. Rice as its witness and offered Composite Exhibit

1 which was received into evidence.

The parties were given the opportunity to file proposed findings and posthearing memoranda. In response to a motion by Kaiser, the time for such filings was extended until September 8, 1980, but Proposed Findings were filed only by the Commission. Careful consideration has been given to the Commission's Proposed Findings. To the extent that they are not contained in this order, they are rejected as being either not supported by competent, substantial evidence, or as irrelevant and immaterial to the issues for determination here.

FINDINGS OF FACT

1. Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978.

   
   

2. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications.

   
   

3. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management.

   
   

4. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the

   70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated:

   7-2-77

   Case number 77-2789

   Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond.

   
   

   3-26-70

   Case number 701455

   Assault and battery, case discharged

   
   

   4-7-70

   Case number 70 1454

   Malicious Mischief, sugar in gas tank of Gail Shipp.

   
   

   K.M.'s report stated:

   
   

   4-30-76

   Case number 21013

   possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine

   
   

   7-31-78

   Case number 3105

   Sale of controlled substance, 80 days Duval County jail, 1 year Probation.

   
   

   There were other charges which were later shown as misdemeanor's. (sic.)

   
   

5. On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no."

   
   

6. After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142)

   
   

   "He said, Well what are you talking about specifically?'

   
   

   And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee.

   
   

   He said, 'Well, what specifically are you talking about?'

   
   

   And I said, 'Well,' I said, 'You currently are on probation?'

   He said, 'Yes, sir.'

   
   

   And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did.

   
   

   And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it.

   
   

7. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser.

   
   

8. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work.

   
   

9. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee,

   K. M.'s report was the equivalent of Mr. Shipp's.

   
   

10. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record.

    
    

11. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status.

    
    

12. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired.

    
    

13. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980.

    
    

14. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)."

15. With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (Supp. 1980) and Section 120.65, Florida Statutes (1979).

    
    

17. As noted above, ruling on Petitioner's Exhibit 6 was reserved until this order. Exhibit 6 consist of three documents: Florida Estimates of Population, dated July 1, 1978, prepared by Population Division, Bureau of Economic and Business Research, University of Florida; Florida Statistical Abstract, Page 25 prepared by the Bureau of Economic and Business Research, College of Business Administration, University of Florida; and Geographic Profile of Employment and Unemployment: States, 1978 Metropolitan Areas, 1977- 78, prepared by the United States Department of Labor, Bureau of Labor Statistics, September, 1979. These reports are hearsay and the witness was presented to testify about the truth of the matters contained therein. They are however admissible and considered a part of this record under the provisions of Section 120.58(j)(a), Florida Statutes (1979) as a type of evidence on which a reasonably prudent person would rely on in the conduct of his affairs.

    
    

18. Under the terms of the Human Rights Act of 1977 it is an unlawful employment practice for an employer to refuse to hire any individual because of his race. Section 23.167, Florida Statutes (1979).

    
    

19. Kaiser is an employer within the scope of the Human Rights Act of 1977. Section 23.162(6), Florida Statutes (1979).

    
    

20. At the commencement of the final hearing Respondent made a motion to dismiss the petition for relief for its not being timely filed. That motion is denied. The Commission rules provides that a petition for relief must be filed within thirty days from service of Notice of Failure of Conciliation. Section 9D-9.08(1), Florida Administrative Code. Here the Notice of Failure of Conciliation was served on March 10, 1980. Mr. Shipp filed his petition for relief on April 8, 1980. Section 9D-8.04(1), Florida Administrative Code.

    
    

21. Because there is yet a paucity of case law interpretting the Florida Human Rights Act of 1977, the Federal cases interpreting Title VII 2/ are persuasive authority in analyzing a discrimination claim under the Florida law. Pasco County School Board v. Florida PERC, 353 So.2d 108, 116 (Fla. 1st D.C.A. 1977). The federal analyses has developed two kinds of discrimination cases: "disparate treatment" and "disparate impact". This distinction was explained in International Brotherhood of Teamsters v. United States, 431 U.S. 333, 335 n.15 (1977):

    
    

    "Disparate treatment" such as is alleged in the present case is the most easily understood type of dis- crimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discrminatory motive is critical, although it can

    in some situations be inferred from the mere fact of differences in treatment. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-266, 97

    S.Ct. 555, 563-565, SD L.Ed.2d 450.

    Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.

    
    

    Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 1861. Proof of dis- criminatory motive, we have held, is not required under a disparate impact theory.

    
    

22. In a disparate treatment case the Plaintiff (Petitioner here) must carry the initial burden of establishing a prima facie case of racial discrimination. This is done by showing:

    
    

    1. that he belongs to a racial minority,

       
       

    2. that he applied for and was qualified for a job for which the employer was seeking applicants,

       
       

    3. that despite his qualifications, he was rejected, and

       
       

    4. that after his rejection the position remained open and the employer con- tinued to seek applicants from persons

       of the Plaintiff's qualifications.

       
       

       McDonnell-Douglas Corporation v. Green, 411 U.S. 801,892 (1973). To defend against a prima facie treatment case, the employer need only "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id; Furnco Construction Company v. Waters, 438 U.S. 567, 578 (1978). If the employer is then successful the employee must be given the opportunity to show that the employer's reason is a pretext for discrimination. McDonnell-Douglas, Supra at 804.

       
       

23. Here Mr. Shipp has failed to prove element no. 4 of a prima facie case. While he has proven that he is black, qualified for the position of equipment tender, and was discharged during his probationary period, he has failed to show that after November 19, 1978, Kaiser ever hired another equipment tender or even solicited applications from anyone for that position or any similar position. For this reason his treatment case must fail.

24. As noted earlier in the International Brotherhood of Teamsters opinion, an essential element of a treatment case is an intent of the employer to discriminate. While such an intent is rarely explicit, it may be inferred from a difference in the treatment of black employees when compared to that of white employees. Such a discriminatory intent is absent here. The only white person, K.M., shown by the evidence to be in a situation similar to Mr. Shipp's was also not given permanent employment. Mr. Shipp has failed to provide any evidence from which it can be inferred that Kaiser harbored a discriminatory intent towards him.

    
    

25. To establish a prima facie disparate impact case an applicant need only show that the employer uses a policy or practice which, while neutral on its face, nevertheless discriminates in effect against a particular group. International Brotherhood of Teamsters, supra at 349. General Electric Company

    v. Gilbert, 429 U.S. 125,137 (1976); Griggs v. Duke Power Company, 301 U.S. 424 (1971). Petitioner here has not proven a suspect policy or practice of Kaiser which can then be shown to have a discriminatory impact. Only Mr. Shipp and

    K.M. were not permanently hired because of their arrest records. The decision not to hire them was not based on any Kaiser policy, written or unwritten.

    While Kaiser's application form inquired about felony convictions, Mr. Shipp was not terminated because of a felony conviction. Mr. Rice had been told by his legal counsel that Mr. Shipp had no felony convictions. The very fact that the application form restrict its inquiry to only felony convictions, points against there being a Kaiser policy not to hire because of only arrests. Other than for two isolated instances, it was not shown that any one has ever been denied employment by Kaiser because of their arrest records. Decisions such as made by Mr. Rice concerning Mr. Shipp and K.M. in isolated instances do not constitute a policy. Wright v. National Archives and Records Service, 609 So.2d 702, 712-713 (4th Cir. 1979)

    
    

26. Even if he had proven that Kaiser had a policy of denying employment to those arrested, Mr. Shipp must then show that such a policy had a disproportionate impact on the protected minority of which he is a member. Mr. Shipp attempted to show this impact with statistics. It is well recognized that statistical analysis performs an important role in proving discrimination.

    Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620 (1974). The usefulness of statistics depends however on the surrounding facts and circumstances of the case. New York Transit Authority v. Beazer, 440 U.S. 568, (1979). In the typical impact case the Plaintiff shows that the employer recruits its work force from a particular geographical area in which live people with the requisite qualifications. This is called the labor market. The Plaintiff then shows that one particular employment qualification, such as a high school diploma, has a heavier impact on minority people because traditionally fewer blacks graduate from high school than do whites.

    Establishing the relevant labor market is crucial to the Plaintiff's case. Hazelwood School District v. United States, 433 U.S. 299 (1977).

    
    

27. In this case no attempt was made to establish the geographical boundaries of Kaiser's labor market. It might be just Duval County or it might well be Nassau County, Clay County, St. Johns County and Duval County. There is no way to tell from the record here. All of the Commission's argument in its proposed order about how many black people have been imprisoned from Duval County is of no value until Duval County is established as Kaiser's labor market. Id. at 308-311. For this reason Petitioner has not proven a prima facie impact case.

28. Were Duval County the relevant labor market, Petitioner would still be short in proving his case. All his statistics compared the ratio of blacks and whites convicted from Duval County to the general population of Duval County

3/. Mr. Shipp was not terminated for being convicted. His discharge was due to his record of arrests. There is no evidence here to show the relative rates of arrests for blacks and whites in Duval County in 1978. An arrest is not the same as a conviction for statistical comparison. It is entirely possible that due to their economic disadvantages blacks who are arrested are convicted at a higher rate than are whites who are arrested. For this possibility alone black- white conviction rates can not be excepted to prove black-white arrest rates.

In summary it is concluded that Petitioner has failed to establish even a prima facie case that Kaiser has engaged in an unlawful employment practice contrary to the provisions of the Florida Human Rights Act of 1977.

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 by Danny Michael Shipp and supported by the Commission.

DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ The full name of K.M. is of no importance to this Order. By agreement of the parties his initials are used because his arrest record is discussed.

2/ 42 USC s. 2000e2(a)

3/ Petitioner's data is based on statistics contained in the Annual Report of the Florida Department of Corrections (1978).

COPIES FURNISHED:

W. Benjamin Kyle, Esquire 1248 West Edgewood Avenue Jacksonville, Florida 32208

Marva A. Davis

Assistant General Counsel Florida Commission on Human

Relations

2562 Executive Center Circle, East Tallahassee, Florida 32301

Robert J. Allen, Jr., Esquire Chief Labor Counsel

Kaiser Aluminum and Chemical Corporation

300 Lakeside Drive Oakland, California 94043

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

Respondent,

and

NORMAN A JACKSON, Executive Director, Florida Commission on Human Relations,

Intervenor.

/

Order Granting Motion to Withdraw

And Denying Petition And Dismissing Complaint

I.

Commissioners

The following Commissioners participated in the disposition of this matter: Commissioner Reese Marshall, Chairperson

Commissioner Robert Billingslea

Commissioner Elvira M. Dopico Commissioner Gabriel Cazares Commissioner Cynthia Moore Chestnut

Commissioner Melvin L. Levitt Commissioner Thomas H. Poole Commissioner Robert Simms

II.

Appearances

For Petitioner: No appearance was made by or on behalf of Danny Michael Shipp (hereafter Petitioner).

For Respondent: No appearance was made by or on behalf of Kaiser Aluminum & Chemical Corp. (hereafter Kaiser).

For Intervenor: Norman A. Jackson (hereafter Executive Director): Harry L. Lamb, Jr.

General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

III.

Preliminary Matters

On April 11, 1979, Petitioner filed a complaint with this Commission pursuant to the Human Rights Act of 1977, Chapter 23, Part IX, Florida Statutes (1979). 1/

An investigation of this matter as conducted by the Office of Field Services pursuant to Rule 9D-9.03. On the basis of the Investigatory Report, submitted by the Office of Field Services and the recommendation of Assistant General Counsel, the Executive Director issued his Determination, finding that there is reasonable cause to believe that an unlawful employment practice has occurred. Notice of this Determination was served upon the parties on February 18, 1980, as required by Rule 9D-9.04. Upon failure of conciliation, Petitioner filed his Petition For Relief pursuant to Rule 9D-9.08, on April 8, 1980.

The Petition For Relief was transmitted to the Division of Administrative Hearings on April 16, 1980, pursuant to Section 120.57, and Rules 9D-9.08(5) and 9D-9.16(2). On January 8, 1981, Michael Pearce Dodson, Hearing Officer, stipulated his Recommended Order based on a hearing conducted on July 16, 1980 in Jacksonville, Florida.

On February 9, 1981, the Executive Director filed his Exceptions to Recommended Order and a Motion For Oral Argument.

W. Benjamin Kyle, Attorney of record for Petitioner, then filed his Motion to Withdraw. On May 29, 1981, Petitioner appeared before Commissioner Melvin Levitt and asked for a continuance of his hearing on the Petition For Relief.

Pursuant to notice, this case was presented to the Commission meeting in Miami, Florida on October 23, 1981. At the hearing, Petitioner did not appear in person or anyone on his behalf. Kaiser was not represented and no proposed findings of fact or conclusions of law were presented.

IV.

Findings of Fact

A copy of the Recommended Order of the Hearing Officer, issued January 8, 1981, is fully set forth as an appendix to this Order.

Pursuant to Section 120.57(1)(b)(9), an agency shall not reject or modify a DOAH Hearing Officer's Findings of Fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceedings did not comply with the essential requirements of law. Having considered the Hearing Officer's Findings of Fact and having reviewed the complete record of proceedings in this cause, it is concluded that such Findings of Fact are based upon the competent substantial evidence of record and are, therefore, adopted by this Commission as its Findings of Fact.

V.

Conclusions of Law

The Commission on Human Relations has jurisdiction over the subject matter and the parties to this proceeding. Sections 23.161 through 23.167.

Petitioner, a male, is a person within the meaning of Section 23.162(5) and Respondent is an employer within the meaning of Section 23.162(6).

Having considered the record of the proceeding in this case, including the Recommended Order, the transcript of proceedings, the exceptions of the Intervenor and having been otherwise fully advised in the premises, the Commission finds that the Hearing Officer's Conclusions of Law are supported by competent substantial evidence of record, except as otherwise noted herein.

The Hearing Officer properly granted the motion of the Executive Director to intervene. Rule 9D-8.13(1) provides:

9D-8.13 Intervention.

1. The Executive Director or a person whose substantial interests may be affected by the deter- mination of a petition may, by motion, request leave to intervene in a proceeding.

The motion of Petitioner's attorney W. Benjamin Kyle, to withdraw, is granted.

Accordingly, the Hearing Officer's Recommended Order is adopted in its entirety, except as modified herein, as the final action of this Commission and the Petition For Relief from an Unlawful Employment Practice and the Complaint of Discrimination are therefore Dismissed.

Petitioner is advised of his right to petition the Florida District Court of Appeal for Review of this decision within thirty (30) days of the date that this Order is filed with the Clerk of the Commission. Section 120.68; Rule 9.110(b), Fla. R. App. P.

It is so ORDERED.

DONE and ORDERED this 4th day of December, 1981. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

REESE MARSHALL, Commission Chairperson Commissioner Robert Billingslea Commissioner Elvira M. Dopico Commissioner Cynthia Moore Chestnut Commissioner Melvin L. Levitt Commissioner Thomas H. Poole Commissioner Robert Simms

FILED this 10th day of December, 1981, in Tallahassee, Florida.

ENDNOTE

1/ Unless otherwise indicated all statutory references are to the Florida Statutes (1979) and all rule references are to the Florida Administrative Code.

ROSEMARY SCARINGE

Commission Clerk

Florida Commission on Human Relations

Copies Furnished:

Mr. Danny Michael Shipp, Petitioner, (C.M. 7773570)

W. Benjamin Kyle, Esquire, (C.M. 7773571)

Robert Allen, Esquire, Attorney for Respondent, (C.M. 7773572) Harry L. Lamb, Jr., Esquire, Legal Advisor to the Intervenor,

Executive Director.

J. Worth Owen, Esquire, Legal Advisor to the Commission.

Docket for Case No: 80-000737

Orders for Case No: 80-000737