vs. ) CASE NO. 83-3326
Respondent. )
This case arose upon the complaint of the Petitioner, David Law, to the Florida Human Relations Commission (Commission) that he had been discriminated against by the Respondent, Deep South Products, Inc. (Deep South). The commission's staff investigated the allegation and concluded there was no reasonable cause. The Petitioner filed for a redetermination which was also investigated after resolution of a motion to dismiss and procedural delays. A second determination of no probable cause was issued and a complaint thereafter filed which was referred to the Division of Administrative Hearings. This case was heard on March 6 and March 30, 1984, and the parties' briefs were filed in early May, 1984. The entry of this recommended order has been delayed by the shift in assigned duties of the Hearing Officer, however, the proposed findings have been read and considered together with the transcript and Hearing Officer's notes. To the extent that proposed findings have been excluded from the following facts it is because the proposed finding was not deemed relevant to the issues or was not based upon the more credible evidence adduced at the hearing.
Greater Orlando Area Legal Services, Inc. Post Office Box B
For Respondent: Kenneth G. Mall, Esquire
Deep South Products, Inc. Post Office Box B Jacksonville, Florida 32203
The issue is whether the Petitioner was discharged for a pretextual reason.
David Law is a black male American.
Respondent Deep South Products, Inc. is a Florida Corporation doing business in Orlando, Florida. Deep South Products, Inc. employs more than 15 persons and engages in an industry affecting commerce, i.e., manufacturer of food products.
Respondent at all times pertinent to this action was the employer of the Petitioner within the contemplation of the Florida Human Rights Act of 1977, as amended, Chapter 23, Part IX, Florida Statutes 1981.
Petitioner David Law was hired by Deep South Products, Inc. in June 1980, and was employed as a general laborer in the Chek Beverage Plant and was receiving $5.40 per hour at the time of his discharge on October 29, 1981. Petitioner received an employee handbook when he was employed by Respondent. Petitioner was considered a capable employee with good potential.
On July 15, 1980, Petitioner was reprimanded about throwing full glass bottles into the dumpster and sitting down on the bottle rack. See Respondent's Exhibit 22.
On September 17, 1980, Petitioner was counseled about his job performance and a lack of interest in doing a satisfactory job. See Respondent's Exhibit 22.
On November 20, 1980, the Petitioner was reprimanded for not taking his lunch break when the relief person came around to give him his lunch break and not when he felt it was time. See Respondent's Exhibit 22.
On December 16, 1980, Production Manager, Mr. Jerome Thomas rated the Petitioner's attitude as "indifferent" and stated "David has the ability to do his work well but at the present time shows little concern and this is what he needs to work on." See Petitioner's Exhibit 2 and Respondent's Exhibit 12.
On January 30, 1981, the Petitioner was reprimanded about punching in and out for lunch or any other time when he was leaving the Plant. See Respondent's Exhibit 22.
On April 15, 1981, the Petitioner was reprimanded for a time card violation. See Respondent's Exhibit 22.
On May 5, 1981, the Petitioner was reprimanded in regard to the Company's policy about uniforms. See Respondent's Exhibit 22.
In July 1981, during the Petitioner's regular annual counseling, he was told by Jerome Thomas that his attitude was "poor" and he "has the ability to run most everything on the line but the only drawback is his attitude, which I hope will change soon." See Petitioner's Exhibit 3 and Respondent's Exhibit 11.
On August 13, 1981, the Petitioner was issued a written Employee Action because of his attitude and insubordination toward Company policies. See Respondent's Exhibit 15.
On October 29, 1981, the Petitioner started work at approximately 6:00
A.M. with a crew of five (5) other employees, two (2) black and three (3) white. These employees were supervised by Production Supervisor, Mr. Steve Pocius, who had instructed them to clean the exterior of the stainless steel sugar holding tank. At approximately 8:00 A.M. the Petitioner and the other employees
received their first 15 minute rest period. Around 9:45 A.M. Mr. Pocius accompanied by Supervisor Frank Beil, proceeded to the sugar tank to inform the employees involved that they were to relieve the can line employees so the latter employees could take their break. Messrs. Pocius and Beil checked the cleaning of the tank, during which time Mr. Pocius realized two employees were missing, the Petitioner and Ricky Street. He asked the other employees if they knew where the two employees were and they said they did not know where they were.
Mr. Pocius and Mr. Beil searched for the two employees by walking through the production area and then one warehouse and another warehouse, then outside to the pallet yard and came back through another warehouse ending up in the cafeteria and still not finding either the Petitioner or Mr. Street. Then, Messrs. Pocius and Beil went upstairs to the locker room and the bathroom and they found the Petitioner sitting on a bench with a newspaper in front of him. Mr. Pocius asked the Petitioner if he was using the restroom or was he on break. The Petitioner said "no". Employee Claude Hickey, a black, who was on break was also in the locker room. Mr. Pocius then asked the Petitioner to go to Mr. Thomas' office.
Mr. Pocius advised Mr. Thomas that the Petitioner had left his work area without permission and that he and Mr. Beil had looked for the Petitioner for at least 15 minutes throughout the plant and outside and finally found him reading the newspaper up in the locker room. Mr. Pocius also told Mr. Thomas that Mr. Street was not in his work area. Mr. Pocius advised Mr. Thomas that he had asked the Petitioner if he was using the restroom or was on break, and the Petitioner said "no". Mr. Thomas advised Mr. Pocius that because of the Petitioner's past record and the seriousness of the offense that Mr. Pocius was to write up the Petitioner's termination.
Mr. Thomas went to look for Mr. Street and found him relieving a production line forklift driver while the driver was changing his battery.
Mr. Pocius went into the office where Mr. Beil and the Petitioner were present. Mr. Pocius looked at the Petitioner's file and wrote up the Petitioner's termination. See Respondent's Exhibit 16.
When they were in the office the Petitioner said he was in the locker room asking an individual if he could borrow some money.
The Respondent's Employee Handbook on page thirteen stated, "All employees are expected to cooperate with and comply with directives issued by the supervisors or supervisor, if at all possible. Willful failure to comply will be cause for termination."
In October 1981, the Company did not have a written formalized disciplinary policy. An employee was not entitled to a certain number of warnings or written employee actions before being terminated. Instead, the extent of the penalty depended on the severity of the offense and in the case of less serious offenses, the frequency of their occurrence and the employee's overall record.
A formalized disciplinary policy was implemented in September 1982, at all the Company's manufacturing plants which had certain categories of offenses with certain prescribed penalties for each offense. This policy did not exist when the Petitioner was discharged.
The Respondent's records show that during the period of May 1980 through October 29, 1981, there were fourteen (14) involuntary discharges in addition to the Petitioner's. Thirteen (13) were white and one (1) was black.
The Respondent's records show that during the period of 1979 to 1984, there was a total of sixty-eight (68) involuntary terminations at its Plant. Fifty-nine (59) were white, and only nine (9), or 13.2%, were black.
Respondent's records show both white and black employees (e.g., Ingram, Respondent's Exhibit 19) were disciplined and were not terminated for leaving their assigned work area prior to September 1982.
Bobby Jolly, white, who left his assigned work area on July 12, 1983, was not terminated but rather disciplined in accordance with the Company's formalized policy after September 2, 1982, as it did not constitute his third employee action within a twelve (12) month period.
Respondent's records show Terry Scoggins, white, was terminated on July 20, 1981, and prior to his termination he only had two employee action forms. See Respondent's Exhbits 23 and 24.
It gas not demonstrated that the Petitioner was subjected to different treatment for misconduct under the same factual circumstances and work rules. The stated cause for Petitioner's discharge of "uncooperativeness" summarizes a history of minor to severe infractions over a significant period notwithstanding continued counseling and other disciplinary measures.
A factor in the Petitioner's discharge was Petitioner's frequent assertions that he was being discriminated against when he was counseled for misconduct.
There is no evidence that Petitioner was discriminated against on the basis of race.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties. However, the matter of the timeliness of the appeal of the Commission's order and the Commission's determination that it was timely is not ruled on in the Recommended Order but preserved in this record as part of the Commission's decision. The only matter before the Hearing Officer is whether the Respondent discriminated against Petitioner because of his race.
The burden lies upon the Petitioner to show that he was discriminated against illegally by the Respondent, Deep South. The Petitioner made a prima facie case when he showed that he was a member of a protected group and was discharged. Deep South then showed it had a legitimate non-discriminatory reason to discharge the Petitioner. Thereafter, Petitioner was obliged to show that Deep South's actions were pretextual.
Although the Petitioner was the only employee whose letter of discharge stated "uncooperativeness" as a reason, the facts reveal that whites had been and were thereafter discharged for similar acts of misconduct. The statistics show that whites were at least as likely to be disciplined and as severely for misconduct as blacks. The Petitioner's failed to show that other employees were treated differently than he was treated. The Petitioner's proof fell short of the required standard because Petitioner did not show that under
the same circumstances a white employee was not discharged. All of the "comparatives" introduced by the Petitioner occurred under-different circumstances, to include degree of offense, number of prior offenses, and the policy in effect at the time of the offense. Although Petitioner mentioned several cases where white employees left their assigned duties, he could not state that a supervisor was aware of it. The Petitioner failed to show that the grounds asserted by tide Respondent, Deep South, were pretextual.
Having found that the Petitioner failed to show that the actions of the Respondent were discriminatory, it is recommended that the complaint be dismissed.
DONE AND ORDERED this 8th day of January, 1985, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1985.
Homero Leon, Jr., Esquire Greater Orlando Area Legal Post Office Box B Orlando, Florida 32802
Kenneth G. Mall, Esquire Deep South Products, Inc. Post Office Box B Jacksonville, Florida 32203
Mr. Donald A. Griffin Executive Director Florida Commission on
