I. DU PONT DE NEMOURS & )
Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on December 3, 1986 in Jacksonville, Florida. The issue for determination is whether the Respondent, E. I. du Pont de Nemours and Company, discriminated against the Petitioner, Milton Baker, when Respondent terminated Petitioner's employment.
For Petitioner: John F. MacLennan, Esquire
Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207
For Respondent: Jerry H. Brenner, Esquire
E. I. du Pont de Nemours and Company
In this proceeding, Petitioner is challenging Respondent's termination of his employment and alleges that Respondent discharged Petitioner from his position of employment because of Petitioner's race, to wit: Black.
In support of his position, Petitioner testified on his own behalf and presented the testimony of Leslie H. Wood, Jr.. Petitioner's Exhibits Nos. 1 through 3 and 5 through 7 were received into evidence.
Respondent presented the testimony of Charles A. Baldree, Dyal W. Baldree, Joe W. Sherrill and Gilberto Valazquez. Respondent's Exhibits Nos. 1 through 10 were received into evidence.
In addition, Joint Exhibit 1, to the extent of matters stipulated and admitted in the Joint Prehearing Stipulation, was received into evidence.
The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made, as reflected in the Appendix to this Recommended Order.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping.
Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period.
Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period.
Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985.
Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows:
During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job.
During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning.
Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed.
During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box.
At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent.
Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent.
Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation.
On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management.
Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A.
Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude.
Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated.
No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated.
On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers.
On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected.
On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time.
On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985.
The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated.
McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985.
McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors.
The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period,
especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor.
The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984.
C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee.
Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts.
Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black.
Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results.
The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions.
The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation.
Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).
Section 760.10(1)(a), Florida Statutes (1985), makes it an unlawful employment practice to discharge or otherwise discriminate against any individual because of such individual's race.
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 non-discriminatory reason for the action 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 reason, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,
67 L Ed. 207 (1981). To establish the prima facie case, Petitioner must present facts which raise "an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissable factors." Id. at 450 U.S. 254.
In order to present a prima facie case of discrimination, the Petitioner must show: (1) he is a member of a protected class; (2) he was capable of performing his job satisfactorily; and (3) he was discharged. Johnson v. Yellow Freight Systems, Inc. 734 F. 2d 1304 (8th Cir. 1984). The dispute centers not on Petitioner's capabilities, but on his actual job performance. Considering the evidence here presented in the light most favorable to Petitioner, it shows that Petitioner was capable of satisfactory
performance on the job but failed to perform his assigned duties satisfactorily. The Petitioner established a prima facie case of discriminatory discharge.
There is substantial competent evidence in the record to show that Petitioner was not performing his job satisfactorily and that Petitioner was fired for poor work performance and his bad attitude toward supervision during his short period of employment. It is apparent from the record that Respondent has articulated a sufficient reason for Petitioner's discharge and thereby rebutted Petitioner's prima facie case.
Petitioner argues that Respondent's stated reasons for his discharge are merely a pretext for unlawful discrimination. In attempting to establish pretext, Petitioner claims that a white employee received written warnings of unsatisfactory work performance through employee/supervisor conferences and was given an opportunity to improve his poor work performance, but that he received no such warnings. Although discharge without warning may be permitted, discriminatory application of a warning policy is not. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 254, 49 L.Ed. 493 (1976).
The record reflects that Petitioner did not receive any written warnings such as would result from an employee/supervisor conference and Petitioner denied that he received any verbal warnings that his job performance was so unsatisfactory that unless it improved he would be discharged. However, there is substantial competent testimony in the record to show that Petitioner was verbally reprimanded for his poor job performance and was made aware that poor job performance would result in discharge. Although Petitioner has shown that he was treated dissimilar from a white employee, he has failed to show that such dissimilar treatment was racially motivated. Therefore, Petitioner has failed to meet his burden to show that the reasons offered by Respondent for his discharge were pretextual and that the intent behind the discharge was actually discriminatory.
