STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUBREY K. MEDAIRIES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1062

)

PINELLAS COUNTY/OFFICE OF )

SUPERVISOR OF ELECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Clearwater on July 19, 1984. The issue is whether respondent, Pinellas County Office of Supervisor of Elections, unlawfully fired petitioner, Aubrey K. Medairies, because he is black, in violation of Section 760.10(1)(a), Florida Statutes (1983).

APPEARANCES

For Petitioner: Aubrey K. Medairies, pro se

St. Petersburg, Florida

For Respondent: Helen K. Hobbs, Esquire

Clearwater, Florida

FINDINGS OF FACT 1/

1. After 1979, Pinellas County and its Supervisor of Elections, Charles J. Kaniss, signed a consent decree settling civil rights/discrimination litigation under which Pinellas County and the Supervisor of Elections agreed to a quota of having 11 percent black employees and a certain percentage women employees. The Supervisor of Elections employed women well in excess of the quota. However, it was short of the required number of black employees, having only one in its twenty-person office.

   
   

2. In an effort to comply with this consent decree, respondent hired petitioner, a black male, in March 1983 on a temporary basis for two reasons: first, petitioner's typing skills were inadequate; and second, budgetary problems called the permanence of petitioner's position in question.

   
   

3. Because petitioner's typing skills were inadequate, respondent agreed to furnish him with an IBM typewriter for him to practice his typing and increase his speed before and after work hours and during slack periods in the work day. Respondent has not made such special arrangements for any other employee with the exception of the office's other black employee, a female, who needed advanced typing skills for a more demanding and responsible position to which she was being promoted.

4. Notwithstanding the opportunities respondent gave petitioner to practice his typing, his typing remained inadequate because he was not only slow but he was unfamiliar with the keyboard. Familiarity with a standard typewriter keyboard and speed are necessary to pass the tests prerequisite for being hired in a permanent position as a data entry specialist, petitioner's position.

   
   

5. While petitioner's typing skills still were inadequate, budgetary problems indicated that respondent should lay off one employee. It was suggested that petitioner should be laid off since he was in a temporary position and since he was the last employee to be hired. Petitioner's immediate supervisor, Deane Hammond, persuaded Kaniss not to lay petitioner off because the office needed him to meet its quota under the consent decree.

   
   

6. On April 7, 1983, after having been on the job only approximately three weeks, petitioner decided not to take a lunch break but to combine his thirty- minute lunch break with his fifteen-minute afternoon break to leave the office for a job interview at approximately 3:00 p.m. in the afternoon. Petitioner did not advise Hammond of his intentions in advance.

   
   

7. At approximately 3:00 p.m. on April 7, 1983, Hammond was in the process of having her staff complete a large and pressing mail-out which required the assistance of her entire staff, including petitioner. Notwithstanding having been advised of this job requirement, petitioner left the office, telling Hammond he was going on break. Petitioner did not advise Hammond that he was planning to take more than fifteen minutes break, And Hammond let him go on break, thinking it was the fifteen minute break to which he was entitled.

   
   

8. When petitioner returned to the office approximately one hour later, Hammond demanded to know here he had been since the office had needed him to help with the mail-out. Petitioner responded that he had combined his lunch break with his afternoon break and had gone to a job interview. Petitioner offered to make up the extra fifteen minutes of unauthorized break. Hammond disagreed that only fifteen minutes was unauthorized, saying that forty-five minutes was unauthorized and that she did not intend to let him make up the time but rather intended to dock his pay forty-five minutes. A short discussion on the subject then took place in the presence of the other employees under Hammond's supervision. At the conclusion of this discussion, petitioner made a statement to Hammond to the effect that she should go ahead and dock his pay, "the hell with it" or "to hell with you."

   
   

9. Hammond was shaken by what she perceived as petitioner's rank insubordination in front of other employees under Hammond's supervision, and Hammond went directly to her supervisor, Zelma Dotson, to discuss the matter. The two agreed that, in light of all the circumstances surrounding petitioner's employment, petitioner should he terminated. They then contacted Kaniss and recommended petitioner's termination. Kaniss concurred. These proceedings followed. Respondent has not yet hired anyone to take petitioner's place but is seeking to hire another black for the next available position.

   
   

10. There was evidence that respondent did not dock a white employee for taking an extended lunch break. But, as described above, respondent terminated petitioner because of the combined effect of the following circumstances totally unrelated to petitioner's race: First, petitioner's skills were inadequate for the job for which he is hired; second, budgetary problems indicated that respondent should release one employee, and petitioner was the last employee to be hired; third, despite special arrangements for on-the-job training, petitioner was unable to improve his typing skills enough to enable him to pass

    the test required before he could be hired on a permanent basis; and four, on top of all of the foregoing, petitioner exhibited irresponsibility by taking unauthorized leave at a time when respondent needed his assistance and exhibited some degree of insubordination when confronted with his misconduct.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 70.10(1)(a), Florida Statutes (1983) makes it unlawful for an employer to fire an individual "because of such individual's race.

    
    

12. In this case, petitioner did not prove that respondent fired him because of his race. In fact, it is highly questionable whether petitioner proved a prima facie case of racial discrimination when it fired him. Regardless whether he did, respondent introduced evidence of non-racial motivations for firing petitioner. Petitioner did not prove them to he merely pretextual. See School Board of Leon County v. Tarcis, 400 So.2d 103 (Fla. 1st

UCA 1981). On the contrary, the evidence establishes that petitioner's race was not a factor, and respondent fired him for reasons other than race.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that petitioner's complaint in this case be dismissed with prejudice.

RECOMMENDED this 24 day of August, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, 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 24th day of August, 1984.

ENDNOTE

1/ Respondent's proposed findings of fact have been considered and accepted to the extent reflected in these Findings of Fact. To the extent not reflected, they are rejected as either not being proven by competent substantial evidence, being contrary to facts proven by petitioner, being subordinate or redundant, or being irrelevant. Petitioner filed no proposed findings of fact. His letter dated August 16, 1984 in rebuttal to respondent's proposed findings of fact is stricken because no copy to respondent is shown on the letter despite two previous admonitions by the Hearing Officer to copy the opposing party with all communications to the Hearing Officer. In compliance with Section 120.66, Florida Statutes (1983) a copy of petitioner's August 17, 1983 letter will he furnished to respondent upon request.

COPIES FURNISHED:

Mr. Aubrey K. Medairies 800 - 20th Avenue South

St. Petersburg, Florida 32712

Helen K. Hobbs, Esquire Assistant County Attorney

315 Court Street Clearwater, Florida 33516

Pinellas County/Office of Supervisor of Elections

c/o Mr. Leon W. Russell Affirmative Action Officer

315 Court Street Clearwater, Florida 33516

Aurelio Durana, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Ms. Rosemary Scaringe, Clerk Florida Commission on Human

Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Docket for Case No: 84-001062

Orders for Case No: 84-001062