STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLYDE WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-478

)

WACKENHUT SERVICES, INC., )

)

Respondent, )

) RICHARD E. WILLIAMS, Executive )

Director of the Florida ) Commission on Human Relations, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 28 and 29, 1982, 1/ in Cocoa, Florida.

APPEARANCES

For Petitioner: Joseph R. Moss, Esquire

Post Office Box 1450 Cocoa, Florida 32922

For Respondent: Mitchell Frank, Esquire and

Duncan B. Dowling III, Esquire Rogers & Dowling, P.A.

Post Office Box 20065 Orlando, Florida 32814

For Intervenor: Aurelio Durana, Esquire

Acting General Counsel

Florida Commission on Human Relations Suite 100 - Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32301-5084

ISSUE

The issues posed for decision herein are whether or not the Respondent discriminatorily discharged the Petitioner, at least in part, based on race or other unlawful considerations, and whether or not the Respondent's employment policies, as practiced against the Petitioner herein, have an adverse impact upon blacks and/or other minorities.

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found:

BACKGROUND

On or about February 12, 1982, Petitioner, Clyde Walker, filed a PETITION FOR RELIEF with the Florida Commission on Human Relations alleging that the Respondent, Wackenhut Services, Inc., had violated the Human Rights Act of 1977, as amended, based on, inter alia, his belief that he was discriminated against and separated from his employment with Respondent because of his race.

Petitioner alleged that Respondent's unlawful employment practices, as relate to him, had an adverse impact against other blacks in the immediate geographic area. That petition resulted in a transmittal of the petition to this Division for the conduct of a hearing pursuant to Section 120.57(1), Florida Statutes.

FINDINGS OF FACT

1. Petitioner was employed by Respondent from March 12, 1979 to May 29, 1979. Petitioner was notified of his termination by Respondent's agent, Captain James McRaven, on May 29, 1979.

   
   

2. Petitioner's efforts to be employed by Respondent commenced with his completing an application during 1978. In this regard, Industrial Relations' Manager, Earle Patrick, sought out Petitioner for employment with Wackenhut as part of his duties of recruiting qualified minority employees for positions. Patrick's effort included personal contacts, advertising, and other recruiting methods, including the use of service organizations in Brevard and the immediate surrounding counties. Industrial Relations' Manager Patrick advised Petitioner that a background investigation is conducted on each employee hired by Wackenhut. Petitioner's knowledge of Respondent's background investigations is further verified by a review of the application, completed by Petitioner, which provides in pertinent part:

   
   

   I . . . agree that if, in the judgment of the company . . . the results of such investigation are not satisfactory, any offer of employment made by the company may be withdrawn, or my employment with

   the company may be terminated immediately without any obligation or liability to

   me . . .

   
   

3. Respondent has a policy of not extending offers of employment to applicants with convictions involving penalties in excess of a $25.00 fine, except minor traffic violations.

   
   

4. Petitioner indicated on the first page of his application for employment that he had never been convicted of a violation of any law. Additionally, this fact was again admitted by the Petitioner during the subject hearing herein. Further, on two separate occasions prior to the Petitioner's commencement of employment with Respondent, Industrial Relations' Manager Patrick inquired of Petitioner whether or not his back ground investigation would reveal anything, aside from convictions, that he (Patrick) should be made aware of. On both occasions Petitioner replied "I am clean."

5. Background investigations of the Petitioner indicated that Petitioner had been placed on one(1)year probation on April 10, 1978, for unemployment compensation fraud. That background investigation revealed further that other counts of unemployment compensation fraud had been withdrawn, and a further charge of issuing worthless checks in Kentucky had been dismissed.

   
   

6. Petitioner pled guilty to the first count of unemployment compensation fraud and was placed on supervised probation for one (1) year. The court withheld adjudication of guilt. While a probationer, Petitioner was not allowed to carry a gun. Further, the Petitioner did not apply for any modification of the terms of his probation which would allow him to carry a firearm.

   
   

7. Respondent maintains a rigid requirement for employee conduct and integrity for its security guard employees. (Respondent's Exhibit 15, Section

   4.6.2.3 and Respondent's Exhibits 6 and 16.)

   
   

8. The decision to discharge Petitioner was based on the results of the Respondent's background investigation of Petitioner and following consultation with its labor counsel, its Industrial Relations Manager, and the Chief of Security.

   
   

9. Although the Petitioner contends that the Respondent was aware of his criminal background prior to employment, the documentary and other evidence introduced herein fails to support his claim in that regard. Further, the evidence reveals that the Petitioner does not employ, or even consider for employment, applicants who have pled guilty to a felony charge. This policy consideration is based on the Respondent's concern for high standards of integrity among its security guards due to the sensitive nature and other security considerations involved in its contract with NASA.

   
   

10. In addition to the unlawful discharge allegation, Petitioner also alleged that he was unlawfully discriminated against in his employment with Respondent based on his failure to be selected for the SWAT Team; the fact that he as discriminatorily assigned to a remote and difficult security job assignment; the failure of Respondent to award him overtime work assignments, and finally, a claim that he was "grilled" by Captain McRaven.

    
    

11. As to his non-selection to be a member of the SWAT Team, the Respondent bases its selection to the SWAT Team on employees who demonstrate a high proficiency in weapons, prior SWAT Team experience, and other factors, including length of employment.

    
    

12. As to Petitioner's claim that he was discriminatorily assigned to a remote and difficult security job assignment, evidence reveals that Respondent attempts to assign employees to all of the possible job locations in an effort to acquaint them as much as possible so that they can be assigned to any and all post assignments as needed.

    
    

13. Respondent selects employees for overtime assignments based on job seniority as set forth in its contract with the employee's job representative. Finally, no evidence was introduced herein to substantiate Petitioner's claim that he was "grilled" by Captain McRaven as charged.

    
    

14. Petitioner acknowledged that there was a problem with his carrying a firearm while he was a probationer; however, he failed to mention his concern to any of Respondent's agents.

15. Industrial Relations' Manager Patrick related that had the results of Petitioner's background investigation only revealed the disorderly conduct charge in Kentucky, Petitioner would still have been in Respondent's employ.

    The decision to terminate Petitioner was promoted by his guilty plea to a felony charge.

    
    

16. Industrial Relations' Manager Patrick made a conscious effort to increase the number of minority employees with the Respondent. As example, during the month of April, 1978, Respondent's minority employees amounted to less than 1 percent of its total complement of employees, and during the course of the hearing, the complement of minority employees approximates 12 percent of the Respondent's total work force. Further, the number of minority employees shows a steady increase since the Respondent was awarded the subject contract with NASA in 1978.

    
    

17. Richard G. Fritz, an associate professor who has earned a doctorate degree in economics, was received as an expert in statistics in this proceeding. 2/

    
    

18. Following a review of the "cause determination" introduced herein by the Intervenor, Dr. Fritz rendered his expert opinion that that determination was informational but not relevant herein, inasmuch as the reference groups were too small to be statistically accurate.

    
    

19. Dr. Fritz reviewed several samples to determine a 50 percent accuracy rate and statistically determined that a sample size would need to number at least 102.18 in order to be valid.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

21. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

22. The authority of the Intervenor is derived from Chapter 23, Florida Statutes, and Rule Chapter 9D-8, Florida Administrative Code.

    
    

23. Petitioner is a black person and therefore is a person within the meaning of Section 23.162(5), Florida Statutes.

    
    

24. Petitioner is an individual within the scope of Section 23.167(1)(b), Florida Statutes.

    
    

25. Respondent is an employer within the meaning of Section 23.162(6), Florida Statutes.

    
    

26. The complaint and petition were timely filed pursuant to Section 23.167(10), Florida Statutes, and Rules 22T-9.01, 22T-9.08, and 22T-8.04, Florida Administrative Code.

    
    

27. Respondent is charged with violating Section 23.167, Florida Statutes, which provides in pertinent part:

    1. It is an unlawful employment practice for an employer:

       1. 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 of employment, because of such individual's race . . .

          
          

28. Additionally, Title VII of the Federal Civil Rights Act of 1964, as amended, provides in pertinent part:

    
    

    1. It shall be an unlawful employment practice fob an employer:

       1. To fail or refuse to hire

    or discharge any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race . . . 42 USC, Section 2000 e-2(a)(1974).

    
    

29. Based on the facts and conclusions set forth herein, insufficient evidence was offered to establish that the Petitioner herein has proved a prima facie case respecting his discharge by the Respondent. In employment discrimination cases, where an employee alleges that he was subject to disparate treatment because of his race, Petitioner carries the initial burden of establishing a prima facie case of race discrimination by showing the actions taken by the employer, from which it can be inferred if the employer's actions are unexplained, that more than likely such actions were based on a discriminatory motive. If Petitioner meets this initial burden, the employer must articulate some legitimate, non-discriminatory reason for its employment action. If the employer articulates such reason, Petitioner must show that the articulated reason was not the employer's true reason but was a pretext for unlawful discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 892 (1973) cited with approval in Texas Department of Community Affairs v. Burdine,

101 S.Ct. 1089 (1981). The evidence herein indicates that the Petitioner was discharged based on his guilty plea to a felony charge. Respondent does not employ, or even consider for employment, applicants with such criminal backgrounds due, inter alia, to the security considerations involved in the employment of patrol officers at the KSC facility. Additionally, evidence reveals that the Respondent's failure to consider for employment applicants with criminal backgrounds involving felony charges is based on sound business justification. As an aside, as noted earlier herein, Respondent has never employed any security patrol officer regardless of race who has entered a guilty plea to a felony charge. Thus, Petitioner has not shown a prima facie case on race discrimination under the disparate treatment theory by showing that similarly situated non-black employees were treated more favorably than Petitioner. In these circumstances, there is no evidence where it could be concluded, or even inferred, that Petitioner was subject to unlawful discrimination. See School Hoard of Leon County v. Hargis, 400 So.2d, 103 (1981). In these circumstances, it cannot be established that that policy of Respondent has an adverse impact upon blacks and/or other minorities. Finally, assuming arguendo that such a policy adversely impacted upon blacks and/or minorities, sufficient legitimate business justification was present at this facility for the Respondent's implementation of the policy. Accordingly, I shall recommend that the petition filed herein be dismissed. 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Florida Commission on Human Relations enter an Order dismissing the PETITION FOR RELIEF filed herein.

RECOMMENDED this 10th day of June, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1983.

ENDNOTES

1/ The parties were afforded leave through November 16, 1982, to submit memoranda supportive of their respective positions. The parties have, in fact, submitted memoranda which were considered by me in preparation of this Recommended Order. To the extent that the parties' Proposed Findings of Fact, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence. Additionally, Petitioner's counsel was granted an additional

14 days to submit a memorandum, which was considered by me in preparation of this Recommended Order. Finally, the parties waived the thirty-day time requirement that the undersigned issue a Recommended Order herein within thirty

(30) days following the close of the hearing.

2/ The parties stipulated to the introduction of an article by Stephen Schoeman as it appeared in the Florida Bar Journal, July/August 1981, entitled "A Framework for Understanding the Role of Statistical Evidence in Equal Employment Opportunity Law."

3/ In view of this conclusion, the other points raised by Petitioner and Intervenor are not addressed herein.

COPIES FURNISHED:

Joseph R. Moss, Esquire Post Office Box 1450 Cocoa, Florida 32922

Mr. Nevin G. Smith Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Mitchell Frank, Esquire and Duncan B. Dowling III, Esquire Rogers & Dowling, P.A.

Post Office Box 20065 Orlando, Florida 32814

Aurelio Durana, Esquire Acting General Counsel Florida Commission on Human Relations

Suite 100 - Montgomery Bldg.

2562 Executive Center Circle, East Tallahassee, Florida 32301-5084

Mr. Richard E. Williams Executive Director

Human Relations Commission Room 100, Montgomery Building Koger Executive Center Tallahassee, Florida 32301

Docket for Case No: 82-000478

Orders for Case No: 82-000478