Pollock, a Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida on September 6, 1985. The issue for consideration was whether Respondent's action in discharging Petitioner constituted unlawful discrimination based on race.
67 West Michael Gladden Blvd. Apopka, Florida 32703
On November 5, 1984, Petitioner, Mose Howard, Jr., filed a charge of discrimination with the Florida Commission on Human Relations against the Respondent, K-Mart Corporation, based on the Respondent's discharge of him from his position as a maintenance and security man at Respondent's store in Orlando, Florida. After investigation by the Commission, on February 25, 1985, a determination of No Cause was reached by the Executive
Director on April 14, 1985, and a Notice of Determination: No Cause, was forwarded to both Complainant and Respondent by the Commission Clerk on April 18, 1985. Thereafter, on May 22, 1985 Petitioner filed a Petition for Relief from Unlawful Employment Practice and on June 11, 1985, a notice of this action was furnished by the Commission to K-Mart Corporation. That same day, a copy of the Petition was forwarded to the Division of Administrative Hearings for appointment of a hearing officer.
At the hearing, Petitioner testified in his own behalf but did not submit any documentary evidence. Respondent presented the testimony of Mr. Harold King, Jr., Assistant Manager of the it-Mart store at which Respondent was employed at the time in issue and introduced Respondent's Exhibits A through C. Neither party submitted proposed Findings of Fact.
Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory.
On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired.
During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work
from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had.
He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him.
In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in.
While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms.
In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory.
After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says
that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period.
A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired.
Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left.
Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently.
He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies.
Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and
how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad.
Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious.
Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job.
The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this
recommendation on the basis that Petitioner was simply not getting the job done.
Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race.
On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility.
Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Section 23.167(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer:
To discharge or to fail to refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
In employment discrimination cases where an individual alleges he was subjected to disparate treatment because of his race, he has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the complainant succeeds in proving a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the actions taken. Texas Department of Commonwealth Affairs v. Burdine, 101 S. Ct. 1089 (1981).
Here, Petitioner has failed utterly to establish any racial motivation for his discharge as a night maintenance man with Respondent's store in Orlando. Only one indication of any racially motivated activity can be found in Petitioner's evidence and that relates to the young stock boy who used the term "nigger." With that one exception, there is absolutely no evidence to establish any racial connection with Petitioner's discharge, and his use of that as a basis for his discharge when, discharge, and his use of that as a basis for his discharge when, in his opinion, he can see no other reason for that action, is without justification or reason.
Even though Petitioner failed to carry his burden, Respondent has, nonetheless, clearly established a perfectly legitimate and reasonable basis for its discharge of the Petitioner and has gone even further by clearly showing that its policy on discharge for cause, is, in fact, color blind.
