STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBY McKENZIE, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0150

)

BACH ENGINEERING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing in the above case was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 4, 1985 in Orlando, Florida.

APPEARANCES

For Petitioner: Harry L. Lamb, Jr., Esquire

521 North Fern Creek Avenue Orlando, Florida 32803

For Respondent: Michael C. Bach

554 North Douglas Avenue Altamonte Springs, Florida 32701

BACKGROUND

This matter arose when petitioner, Ruby McKenzie, filed a complaint with the Florida Commission on Human Relations on February 17, 1984, alleging that respondent, Bach Engineering, Inc., had terminated her employment because of race. After conducting a preliminary investigation, the Commission found probable cause on September 4, 1984 that an unlawful employment practice had occurred. When conciliation between the parties failed, a petition for relief was filed by McKenzie on January 3, 1985.

The petition was forwarded by the Commission to the Division of Administrative Hearings on January 15, 1985 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated March 1, 1985, the final hearing was scheduled on March 27, 1955 in Orlando, Florida. At the request of petitioner, the hearing was rescheduled to April 4, 1985 at the same location.

At the final hearing petitioner testified on her own behalf, presented the testimony of Sonja Schultz and Ramona

1. Price, and offered petitioner's composite exhibit 1 which was received in evidence. Respondent presented the testimony of its president, Michael C. Bach, and Barbara Gibson, Sonja Schultz, Margaret E. Jenkins, Annie J. Murphy, Dianne Clark and Johnny Mae Howard, all employees of the company.

   
   

   There is no transcript of hearing in this proceeding, and the parties did not file proposed findings of fact and conclusions of law.

   
   

   ISSUE

   
   

   The issue herein is whether petitioner was unlawfully terminated from her employment with respondent because of race.

   
   

   Based upon all the evidence herein the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Ruby McKenzie, is a black female who was first employed by respondent, Bach Engineering, Inc. (Bach), on June 14, 1982, in the position of electronics assembler. She initially held a temporary position but was later placed in a permanent position in March, 1993. At the time of her termination on February 17, 1984, she was earning $4.82 per hour.

      
      

   2. Bach, which is located in Altamonte Springs, Florida, is a manufacturer of radio systems, components and parts for the airline industry. As such, it requires that workers have some degree of skill and precision. The business employs some 55 to 50 persons, of whom perhaps a dozen are black, and is functionalized into departments

      (e.g., quality control, repair, final assembly and stockroom). All departments are under the control of a supervisor. During much of her employment with Bach, McKenzie's supervisor was Ida Metzer, who was responsible for most of her performance evaluations and criticisms.

      However, Metzer was killed in an automobile accident in late 1984. At the time of her discharge, McKenzie was in the repair department where her supervisor was Karen Miller, a white female.

      
      

   3. Bach's personnel policies regarding attendance and tardiness are set forth in a document entitled "Personnel Manual." Although its president, Michael Bach, claimed that this document is disseminated to all employees, there was evidence that this was not true. Nonetheless, all employees including McKenzie, had the "understanding" that if they were going to be absent or late for work (which began at 7:00 a.m. each day Monday through Friday), they were to call their department supervisor before the beginning of the work day. This was generally consistent with the instructions in the personnel manual. Under company "policy", an employee with "excessive" absenteeism or tardiness is first given a verbal warning, then a written warning, and is then subject to termination. McKenzie understood that even after a verbal and written warning had been given, she would then be placed on probation for a 50 or 90 day period rather than being terminated. However, Michael Bach said his policy was that once a verbal warning is given, the employee is automatically placed on probation for "around" 90 days. In all cases, he stated that a verbal and written warning is given prior to an employee being discharged.

      
      

   4. Bach hires both temporary (part-time) and permanent employees. The temporary employees are generally supplied by a local agency that provides this type of employee. The rules regarding absenteeism and tardiness apply to both temporary and permanent employees, although Michael Bach stated that mode leeway is given temporary employees when enforcing the rules.

      
      

   5. McKenzie worked in various departments within the firm. She was described by Michael Bach and the operations manager as being capable of doing a food job, but did so only when she enjoyed the job she was performing. If she did not like her job, her work was described as being less than satisfactory. Nonetheless, she received at least a

      satisfactory rating for each six month period she worked at Bach, the last being for the period July 5, 1983 through January 5, 1984, or approximately six weeks before being discharged. Bach stated that even though McKenzie received a satisfactory rating, these evaluations were not always accurate, because if less than satisfactory ratings were given, it would tend to discourage a worker from performing satisfactorily during the next six months period. Despite the satisfactory performance evaluation, McKenzie's most recent performance on the job was characterized as "very poor" by the operations manager. She was also criticized for poor workmanship on the "boards," did not wear glasses as required by her job, and was slower than counterparts in performing her work duties. This was confirmed by a coworker (black) who stated that she worked twice as many boards each day as did McKenzie, and frequently had to do "rework" on McKenzie's errors.

      
      

   6. Bach gives each worker five days sick leave and five days vacation time annually. Employees are expected to use their vacation time during July of each year when the plant is shut down. McKenzie was absent from work or tardy a total of 100 hours during 1983, or more than her allotted amount of sick and annual leave, and 19.5 hours the first month and a half in 1984. In 1983, she received a verbal warning for her absenteeism and tardiness on March

      31 and October 12, and a written warning concerning the same on April 19, 1983. She was again given a verbal warning on February 15, 1984. The next day she was discharged for "absenteeism, inconsistent (sic) in quality and quantity of work." Her termination prompted the instant proceeding.

      
      

   7. McKenzie's dismissal was ordered by Michael Bach after McKenzie's immediate supervisor (Karen Miller) complained to the operations manager (Sonja Schultz) about McKenzie's continued tardiness, absences and poor work. Indeed, most recently, she had been late on February 10 and 13, and simply left a message on February 15 that she "wasn't coming in." The termination notice reflected that the "employee was warned on several occasions about attendance and workmanship, failure to do acceptable jobs in areas required", and that she was ineligible for reemployment "due to attendance and workmanship."

      
      

   8. To substantiate her complaint, McKenzie points to two white female employees, Debbie Price and Connie

      McIntosh, both temporary employees, who had more absences than her when she was fired, but were allegedly not terminated by Bach. Mclntosh was absent 50.5 hours from October 13, 1983 through the end of the year, and 85.5 hours from January 1 through March 9, 1984 when she was laid off because of a production slowdown. However, more than half of Mclntosh's absences were due to her child's illness. She was given a verbal warning concerning her attendance on February 15, 1984, or just prior to being laid off. The other employee (Price) requested a change to a permanent status in her job, but was turned down because of poor attendance. Because of this, she quit her job on February 17, 1984, the same day McKenzie was discharged. A third employee, also a white female was fired on March 10, 1984, for excessive absenteeism after receiving two verbal warnings and two written warnings between September, 1953 and February, 1984. In the latter case, the employee had been absent 114 hours in 1983 and 90 hours in 1984 prior to her termination.

      
      

   9. Bach has been in operation for some five years. Its president has a policy of treating all employers equally, and claims its hiring and firing policies apply equally across the board to all employees regardless of race or sex. A number of employees (all black) confirmed this and denied the existence of any discriminatory practices employed by the company. Indeed, McKenzie herself could not identify any such practices, and merely "guessed" that the reason she was fired was because she was black.

      
      

   10. After being terminated by Bach, McKenzie was unemployed for approximately six weeks. She then obtained a job with Sonitrol Electronics Corporation at an hourly wage of $4.00, or .82 cents less an hour than she earned at Bach. She has been employed continuously with Sonitrol since obtaining that job. In this proceeding, she asks for the difference between her present salary and the salary she received at Bach, the loss of wages while she was unemployed, and reasonable attorney's fees and costs for prosecuting this complaint.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   12. Subsection 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer:

       
       

       1. To discharge. . . any individual with respect to ... employment because of such individual's race.

          
          

   13. Petitioner of course carries the burden of establishing that an unlawful employment practice has occurred. Fla. Dept. of Transportation v. J.W.C. Company, Inc., 396 So 2d 778 (Fla. 1st DCA 1978). In this regard, the Instructive language found in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981) bears repeating. There the Court held the terminated employee carries the burden of proving by a preponderance of evidence a prima facie case of discrimination. If she succeeds, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's termination. Should the employer meet this burden, the employee must then prove by a preponderance of evidence that the legitimate reasons offered by the employer were not its true reasons, but were instead a pretext for discrimination.

       
       

   14. The evidence reveals that McKenzie has carried her initial burden of proving a prima facie case of discrimination by offering proof that she was terminated solely because of race, and not because of substandard performance or excessive absenteeism or tardiness. Bach then articulated a legitimate, nondiscriminatory reason for her termination, that being excessive absenteeism and tardiness. However, its reason that McKenzie's work was unsatisfactory is rejected given the satisfactory ratings received by McKenzie during her tenure with the firm. Even so, the proffered reason (attendance) satisfies the employer's task, and shifts the burden to McKenzie to show that the proffered reason was not the true reason for the termination decision. McKenzie sought to do so by pointing out that she was not treated the same as similarly situated employees. Specifically, she established that two white females were absent more often than she, and that they were not terminated. Even though another white employee was later terminated for absenteeism, it is concluded that under these circumstances the employer's reason was a

       pretext for discrimination. Therefore, an unlawful employment practice has occurred.

       
       

   15. Under Subsection 760.10(13), Florida Statutes, petitioner is entitled to be made "whole", and to accordingly be given "affirmative relief". This should include the difference between her present pay ($4.00 per hour) and her pay with Bach ($4.82 per hour) since her termination, full pay for the six weeks she was without a job, and reasonable attorney's fees. The latter should be established by filing an appropriate affidavit with the agency which may then authorize such fees in its final order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that petitioner's petition for relief be GRANTED, that respondent be found guilty of unlawful employment practice, and that petitioner receive the relief set forth in paragraph 5 of the conclusions of law portion of this order.

DONE and ORDERED this 8th day of May, 1985, in Tallahassee, Florida.

Hearings

Hearings

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 8th day of May, 1985.

COPIES FURNISHED:

Harry L. Lamb, Jr., Esquire

521 N. Fern Creek Avenue Orlando, Florida 32803

Mr. Michael C. Bach 654 N. Douglas Avenue

Altamonte Springs, Florida 32301

Aurelio Durana, Esquire

325 John Knox Road, Ste. 240, Bldg. F Tallahassee, Florida 32303

Docket for Case No: 85-000150

Orders for Case No: 85-000150