STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

WILLIE HUDSON, JR., )

)

Petitioner, )

)

vs. ) Case No. 85-3717

) AFFILIATED OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on March 3, 1986 in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Willie Hudson, Jr. pro se

11705 Park Orchard Circle Apartment Number 3

Tampa, Florida 33612

For Respondent: Wayne L. Helsby, Esquire

201 South Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 32801

The issue for determination at the final hearing was whether the Respondent, Affiliated of Florida, Inc., as employer of the Petitioner, Willie Hudson, Jr., committed an unlawful employment practice by discriminating against Petitioner on the basis of race.

PROCEDURAL BACKGROUND

On April 24, 1985, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations alleging that Respondent committed an unlawful employment practice by terminating Petitioner's employment on the basis of race. On August 16, 1985, the Florida Commission on Human

Relations rendered its proposed notice of determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. By petition filed with the Division of Administrative Hearings on October 31, 1985, Petitioner requested an administrative hearing on his charge of race discrimination against Respondent, Affiliated of Florida, Inc. This cause came on for final hearing on March 3, 1986.

At the final hearing, the Petitioner testified in his own behalf and presented Petitioner's Exhibits 1 and 2 for consideration. The Respondent presented the testimony of the following witnesses: Raymond Scott; Ralph Cooper; and Willie Robinson. In addition, Respondent's Exhibits 1 and 3 were duly offered and admitted into evidence. The Respondent submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida.

   
   

2. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia.

   
   

3. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period.

   
   

4. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with

   Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers

   were Relford Cooper (black male) and Steve Smith (white male).

   
   

5. One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department.

   
   

6. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business.

   
   

7. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself.

   
   

8. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard.

   
   

9. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries.

   
   

10. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to

    do.

    
    

11. Scott spoke directly with Petitioner and explained to

    him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson.

    
    

12. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out.

    
    

13. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male).

    
    

14. For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him.

    
    

15. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured.

    
    

16. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT.

    
    

17. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged.

    
    

18. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired.

19. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them.

    
    

20. Of the 54 drivers employed by Respondent, 15 are black.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes (1983).

    
    

22. In a discrimination case, the Petitioner has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate non-discriminatory reason for the actions complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). To establish the prima facie case, the Petitioner must present facts which "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration -of impermissible factors." Id. at 450 U.S. 254. It is at this point that Petitioner's burden of proving pretext and his ultimate burden of persuasion merge, requiring that the complainant establish the existence of intentional discrimination. In order to establish a prima facie case, the Petitioner must show: (1) that he belongs to a protected class; (2) that he was qualified for the particular position; and (3) that despite his qualifications, he was discharged. Chaline v. Koch, Inc., 693 F.2d 477 (5th Cir. Ct. App. 1982). The- Petitioner has failed to establish a prima facie case. Although the Petitioner established that he is a member of a protected group (black) and was in fact discharged by Respondent, he has not shown that he was qualified for the position of driver. As a probationary employee, the Petitioner was required to demonstrate that he could perform the essential duties of a driver. One of those functions was to properly fill out the paper work that was required to be completed upon delivery of merchandise. The evidence was unclear as to whether Petitioner was incapable of or simply unwilling to perform that task in the manner required by Respondent. Nevertheless, the

    Petitioner was given ample training and an ample opportunity to demonstrate to his employer that he could perform the duties required of a driver. However, this the Petitioner failed to do.

    
    

23. The Petitioner asserted that the reason that he was unqualified for the position was that he was not provided the same quality of training that white driver trainees were provided. However, the Petitioner failed to show how his training was inadequate in comparison to the training provided to white drivers. The uncontradicted evidence was that Petitioner was given not only the standard two week training period, but unlike any other driver in Respondent's history, was given a second training period to improve his ability to perform the job.

    
    

24. In addition to Petitioner's failure to demonstrate his ability to successfully complete the MATs, his job performance was deficient in other respects. The Petitioner did not follow standard and routine procedures established by Respondent and explained to him during the training process when taking equipment on or off of the warehouse premises. Further, both of Petitioner's driver trainers, one black and one white, complained that Petitioner exhibited a negative and uncooperative attitude during the training process.

    
    

25. Assuming that the Petitioner did present a prima facie case of race discrimination, the Respondent articulated legitimate and non-discriminatory reasons for his discharge. The Petitioner was unable to demonstrate that the reasons advanced by the Respondent were a pretext for discrimination. The Petitioner did not show that race played any role in Respondent's decision to terminate him. To the contrary, the evidence showed that the Petitioner was discharged because he was unable to perform one of the essential requirements of the position, displayed a negative attitude and failed to respond to the training opportunities provided.

RECOMMENDATIONS

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied.

DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida.

W. MATTHEW STEVENSON, 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 10th day of May, 1986.

COPIES FURNISHED:

Wayne L. Helsby, Esguire

201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280

Willie Hudson, Jr.

11705 Park Orchard Circle Apartment #3

Tampa, Florida 33612

Affiliated of Florida, Inc. 1102 N. 28th Street

Tampa, Florida 33605

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

325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Betsy Howard, Clerk of the Commission Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303

APPENDIX

Rulings on Proposed Findings

of Fact Submitted by the Petitioner (None submitted)

Rulings on Proposed Findings of Fact Submitted by the Respondent

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 2 and 4.

3. Adopted in Finding of Fact 4.

4. Adopted in Finding of Fact 5.

5. Adopted in Finding of Fact 6.

6. Adopted in Finding of Fact 7.

7. Adopted in Finding of Fact 8.

8. Adopted in Finding of Fact 9.

9. Adopted in Finding of Fact 3.

10. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony.

11. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony.

12. Adopted in Finding of Fact 10 and 11.

13. Adopted in Finding of Fact 11.

14. Adopted in Findings of Fact 12, 13 and 14.

15. Adopted in Findings of Fact 14, 15, 16 and 17.

16. Adopted in Findings of Fact 17, and 18.

Docket for Case No: 85-003717

Orders for Case No: 85-003717