STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSIE LEE WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-546

)

ALEXANDER CABINET COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 26 and 28, 1982. The following appearances were entered: Brian Norton, Tallahassee, Florida, appeared on behalf of the Petitioner, Jessie Lee Williams; and Robert Alexander, Jr., Tallahassee, Florida, appeared on behalf of the Respondent, Alexander Cabinet Company.

Petitioner filed a Complaint of Discrimination against the Respondent with the Florida Commission on Human Relations. Petitioner contended that he was employed with the Respondent and that he was fired on account of his race. The Commission entered a "Notice of Determination: Cause" on January 5, 1982.

Petitioner filed a "Petition for Relief," efforts at conciliation were unsuccessful, and a formal administrative hearing was requested. The matter was forwarded to the office of the Division of Administrative Hearings and filed on March 1, 1982. The final hearing was originally scheduled to be conducted on June 8, 1982, by notice dated March 30, 1982. Petitioner requested a continuance, and the hearing was rescheduled to be conducted as set out above.

Petitioner filed a "Motion for Summary Judgment on Liability and Motion for Default." The basis for the motion was that Petitioner had filed Requests for Admissions, served them upon Respondent, and that Respondent had not answered.

Petitioner contended that the admissions established his entitlement to prevail in the proceeding as a matter of law. The Motion for Summary Judgment was denied on the record at the final hearing, but the matters set out in the Requests for Admissions were deemed admitted. The Commission on Human Relations had originally been designated as a party in this proceeding. The Commission filed a "Motion to Drop Agency as Party," which was granted on the record at the final hearing.

Petitioner testified as a witness on his own behalf at the final hearing and called Nina Alexander, an officer of the Respondent, as an additional witness. The Respondent called the following witnesses: Nina Alexander; Robert

1. Alexander, Jr. (the older Robert Alexander), the original owner and president of the Respondent; and L. J. Parker, Wilton White, Wallace Williams, and Jackson Shufort, all of whom are present or former employees of the Respondent.

   
   

   The record will reflect some confusion as to the use of the name "Robert Alexander, Jr." The original owner and president of the Respondent is named Robert Alexander, Jr. He appeared at the hearing and testified on behalf of the

   Respondent. For convenience, this Robert Alexander, Jr., will be referred to as the older Robert Alexander. The Robert Alexander, Jr., who appeared as the Respondent's representative at the hearing is currently the Respondent's president and is the son of the older Robert Alexander. He will be referred to as the younger Robert Alexander.

   
   

   Petitioner's Exhibits 1 and 2 and Respondent's Exhibits 1, 2, 6 through 9, and 11 through 13 were offered into evidence and received. Respondent's Exhibits 3, 4, 5, and 10 were offered into evidence and rejected.

   
   

   The parties were offered an opportunity to present post-hearing legal memoranda. Petitioner has submitted proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are explicitly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous. There were conflicts in the testimony offered by the Petitioner and witnesses who testified on behalf of Respondent. In resolving these conflicts, due regard has been given to the extent to which the witnesses' testimony is supported by other evidence and the demeanor of the witnesses at the hearing.

   
   

   ISSUES

   
   

   The issues in this proceeding are whether the Respondent discriminated against the Petitioner on account of his race and, if so, what relief Petitioner should receive.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner is a black male. He worked for the Respondent, Alexander Cabinet Company, for most of the eighteen years prior to May 7, 1979. At various times during that period, he was otherwise employed. He had worked continuously for the Respondent for approximately two years prior to May 7, 1979.

      
      

   2. The Respondent is in the business of constructing kitchen cabinets. The Respondent was incorporated in 1966. In its prior business form, the Respondent commenced doing business in 1947.

      
      

   3. Petitioner was employed with Respondent as a "door hanger." He was well qualified for the position and was one of the best employees in that capacity that Respondent ever had. Petitioner was terminated from his employment with Respondent on May 7, 1979. Respondent contends that he was terminated due to "insubordination." Petitioner was replaced by a white male. Petitioner's replacement was ultimately replaced by a black male.

      
      

   4. Subsequent to his termination, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations. The Commission investigated the charges and found reasonable cause to believe that Respondent discriminated against Petitioner on account of his race. This proceeding ensued.

      
      

   5. Petitioner was compensated for his work with the Respondent on a "piece-work" basis. At the time of Petitioner's termination, most of the Respondent's black employees were paid on a piece-work basis, while most of the Respondent's white employees were paid on an hourly basis. Black employees did not receive time-and-a-half overtime pay, and black workers were required to

      perform extra duties for which they were not paid. Respondent refused to allow black employees to be paid on an hourly, rather than a piece-work, basis.

      Piece-work employees were, however, if they were diligent, able to earn as much or more compensation than workers paid on an hourly basis.

      
      

   6. At the time of his discharge, the Petitioner had a part-time job as well as his full-time job with Respondent. On Fridays, Petitioner would typically leave Respondent's shop at approximately 12 noon in order to go to his other job. The Respondent distributed its paychecks on Fridays. The Respondent, over a long period of time, gave the Petitioner his paycheck when he left the shop at midday on Friday. Approximately five weeks prior to May 7, 1979, the Respondent adopted a policy that paychecks would not be delivered until 3 p.m. on Fridays. Employees were given appropriate notice of this policy. Despite the adoption of this policy, Respondent continued to deliver Petitioner's paycheck to him when Petitioner left the shop at approximately noon on Fridays.

      
      

   7. On Friday, May 7, 1979, Respondent was having difficulty getting sufficient funds into its accounts to cover its payroll checks. When the Petitioner went to the office to pick up his check at approximately 12 noon, he was reminded by the older Robert Alexander of the new policy and was told that he could not obtain his check before 3 p.m. Petitioner left the office and returned on several occasions. On each occasion that he returned, he demanded his paycheck, and the exchanges between him and the older Robert Alexander became more heated. At approximately 2:15 p.m., the Petitioner returned to the office and requested his paycheck. Both the older Robert Alexander and the Petitioner were quite angry. The older Robert Alexander threatened Petitioner with a handgun, gave him his paycheck, and advised him that his employment was terminated.

      
      

   8. Prior to May 7, 1979, the older Robert Alexander had threatened to fire his black employees and replace them with whites. The older Robert Alexander usually carried a handgun on his person during working hours. The older Robert Alexander was known by his employees to be very competent in the use of such a gun.

      
      

   9. A white employee in a similar circumstance to the events surrounding Petitioner's discharge would not have been fired. There was testimony offered with respect to the firing of a white employee by the Respondent for insubordination unconnected with the employee's job performance. The circumstance of that termination, however, was not sufficiently similar to the circumstances surrounding Petitioner's termination to justify any finding that a white employee in a circumstance similar to Petitioner's would have been discharged.

      
      

   10. Petitioner has made diligent effort to obtain other employment since his termination by Respondent. Petitioner's income tax returns fairly reflect Petitioner's earnings for the years 1978, 1979, and 1980. During 1978, Petitioner's income, discounting income earned by his wife, was $14,096.18. Of that amount, he earned $8,085.26 from his employment with Respondent. During 1979, Petitioner's total income was $7,592.21. The difference between his total income in 1978 and 1979 resulted from his being terminated by Alexander Cabinet Company. This difference is $6,503.97. During 1980, Petitioner earned a total income of $7,911.85. The difference between Petitioner's 1978 and 1980 income resulted from his termination by Respondent. That difference is $6,184.33. No evidence was presented as to Petitioner's income during the years 1981 or 1982.

       It appears that his income tax returns for the 1981 calendar year had not yet been prepared at the time of hearing.

       
       

   11. No evidence was presented at the hearing as to a reasonable attorney's fee for Petitioner's counsel.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. The Findings of Fact set out in this Recommended Order are based in part upon Requests for Admissions that were filed by Petitioner and served upon Respondent. Respondent did not file timely answers to the Requests for Admissions, and the matters set out in the Requests for Admissions were accordingly deemed admitted. On the morning of the hearing, Respondent sought relief from the effect of deeming those matters admitted.

       
       

   14. Discovery is available in administrative proceedings by the means and in the manner provided in the Florida Rules of Civil Procedure. Section 120.58(1)(b), Florida Statutes. Rule 1.370 of the Florida Rules of Civil Procedure provides for the filing of requests for admissions. The rule requires that matters set out in such requests are admitted unless the party to whom the requests are directed properly answers or objects to the matters within thirty days after service of the requests. Respondent did not file a timely response to the Requests for Admissions filed by Petitioner. Rule 1.370(b) provides:

       
       

       Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to Rule 1.200 governing an amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. . .

       
       

       Respondent offered no cognizable justification for its failure to respond to the Requests for Admissions. Indeed, Respondent did not seek any relief from the effect of its failure to respond until the day of the hearing. To have allowed a modification of the effect of the failure to respond at that juncture would have clearly prejudiced Petitioner in the preparation of his case.

       
       

   15. The Respondent was an "employer" within the meaning of the Human Rights Act of 1977 on the date that it terminated the Petitioner. Section 23.162(6), Florida Statutes.

       
       

   16. Section 23.167(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge an individual on account of his race. The evidence in this matter establishes that, but for his race, Petitioner would not have been terminated from his employment with the Respondent on May 7, 1979. Accordingly, Respondent has committed an unlawful employment practice.

   17. Section 23.167(13), Florida Statutes, provides that upon the finding of an unlawful employment practice, the Florida Commission on Human Relations shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including a reasonable attorney's fee. It is appropriate that the Commission enter an order directing that Petitioner be reinstated to his position with the Respondent, that the Respondent pay Petitioner back pay as reflected by the loss in earnings suffered by Petitioner despite his efforts to mitigate losses, and that Respondent pay Petitioner a reasonable attorney's fee. The evidence establishes that Petitioner suffered in income in the amounts of $6,503.97 for the 1979 calendar year and $6,184.33 for the 1980 calendar year. No evidence was presented as to Petitioner's losses during 1981 or 1982. Furthermore, no evidence was presented as to a reasonable attorney's fee.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered by the Florida Commission on Human Relations finding that the Respondent, Alexander Cabinet Company, committed an unlawful employment practice by terminating the employment of the Petitioner, Jessie Lee Williams, on May 7, 1979; and directing that Respondent reinstate Petitioner to his former position and pay him back wages in the amount of $12,683.30 for the 1979 and 1980 calendar years, such back wages as are determined appropriate for the period since 1980, and a reasonable attorney's fee as determined by the Commission.

RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 15th day of September, 1982.

COPIES FURNISHED:

Brian Norton, Esquire 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32303

Mr. Robert Alexander, Jr. Alexander Cabinet Company 1320 Lake Bradford Road Post Office Box 2537 Tallahassee, Florida 32304

Mr. Richard Williams Executive Director

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

Docket for Case No: 82-000546

Orders for Case No: 82-000546