STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

ROBERT HARDISON, JR. )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 85-1715

) (FCHR# 79-0801) STATE OF FLORIDA, DEPARTMENT OF )

HIGHWAY SAFETY & MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal Hearing was conducted in this case on May 22, 1986, at West Palm Beach, Florida, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Mark A. Cullen, Esquire

   CULLEN & SZYMONIAK, P.A.

   1030 Lake Avenue

   Lake Worth, Florida 33460

   
   

   For Respondent: Judson M. Chapman

   Assistant General Counsel Department of Highway Safety

   and Motor Vehicles Neil Kirkman Building

   Tallahassee, Florida 32301

   
   

   At the hearing the Petitioner testified on his own behalf. He also called one other witness and offered several exhibits. The Respondent called four witnesses and also offered several exhibits. Subsequent to the hearing both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered during the formulation of this Recommended Order. A specific ruling on each of the proposed findings of fact is set forth in the Appendix which is attached to and incorporated into this Recommended Order. Neither party ordered a transcript of the hearing.

   ISSUES AND INTRODUCTION

   
   

   This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination.

   
   

   The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent.

   
   

   At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation.

   
   

   By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.

   
   

   FINDINGS OF FACT

   
   

   1. Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact:

      
      

   2. Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent.

      
      

   3. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired.

      
      

   4. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month.

   5. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire.

      
      

   6. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation.

      
      

   7. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination.

      
      

   8. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of

      19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978.

      
      

   9. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace).

      
      

   10. on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey.

       The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation.

       
       

   11. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive

       Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979.

       This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance.

       
       

   12. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner.

       
       

   13. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality.

       
       

   14. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown.

       
       

   15. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis.

       
       

   16. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional.

       Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators.

       
       

   17. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators.

       
       

   18. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period.

       
       

   19. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed.

       
       

   20. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner.

       Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner.

       
       

   21. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality.

   22. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   24. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to compensation, terms, conditions, or privileges of employment because of such individual's sex.

       
       

   25. Discrimination denotes disparate treatment, i.e., that the employer treated employees of one sex differently than it treated employees of the opposite sex. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's disparate treatment. Should Respondent carry this burden, Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L. Ed . 2d 207 (1981).

       
       

   26. To present a prima facie case, the Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and N. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

       
       

   27. In order to establish a prima facie case Petitioner must show: (1) that he is in a classification covered by Section 760.10; (2) that he performed his assigned duties satisfactorily; and (3) that despite his satisfactory performance he was treated in a discriminatory manner. Cf. McDonnell Douglass Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817, 37 L.Ed. 2d 668 (1973).

       
       

   28. Petitioner has not established that his sex was in any way a factor in the Respondent's decision to dismiss him. The

       evidence in this case simply fails to establish that the Respondent discriminated against Petitioner because of sex. Accordingly, it is concluded that Petitioner has failed to establish a prima facie case of discrimination.

       
       

   29. In any event, even if Petitioner had succeeded in establishing a prima facie Case of discrimination, the Respondent has articulated and substantiated legitimate, non-discriminatory reasons for the dismissal complained of by Petitioner, and the Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination because of his sex.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr.

DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986.

COPIES FURNISHED:

Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A.

1030 Lake Avenue

Lake Worth, Florida 33460

Judson M. Chapman Assistant General Counsel

Department of Highway Safety and Motor vehicles

Neil Kirkman Building Tallahassee, Florida 32301

Enoch Jon Whitney General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical.

Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing.

Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not

as finding of fact.

Paragraph 2: Accepted.

Paragraph 3: Accepted with additional findings for accuracy.

Paragraph 4: Accepted.

Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity.

Paragraph 7: Accepted.

Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence.

Paragraph 10: Accepted.

Paragraphs 11 and 12: Accepted in substance.

Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument.

Paragraph 14: Accepted.

Paragraph 15: Rejected as contrary to the greater weight of the evidence.

Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously.

Paragraph 17: Consistent with the evidence, but rejected as irrelevant.

Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence.

Paragraph 19: Accepted.

Paragraph 20: Rejected as incorrect characterization of the evidence.

Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant.

Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted.

Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous.

Paragraphs 9 and 10: Accepted.

Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance.

Paragraphs 12, 13, 14, 15, and 16: Accepted.

Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant.

Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence.

Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case.

Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.

Docket for Case No: 85-001715

Orders for Case No: 85-001715