STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD D. JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3716

) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 17, 1987. The Division of Administrative Hearings received the transcript of proceedings on June 30, 1987.

The petitioner appeared on his own behalf. Respondent was represented by counsel:

Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources

3900 Commonwealth Boulevard, Suite 1003

Tallahassee, Florida 32399

In response to petitioner's complaint that respondent discriminated against him on account of his race in terminating his employment, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE," dated August 25, 1986. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.08(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, for consideration de novo, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).

In the petition for relief, petitioner alleges that he believed that respondent Department of Natural Resources (DNR) terminated his employment, on January 21, 1985, not because he could not pass the swimming portion of the physical aptitude test, but because of race discrimination. By order entered February 12, 1987, petitioner was allowed leave to amend the petition to allege that retaliation for a memorandum he wrote on December 17, 1984, as well as race prejudice, motivated his discharge.

ISSUE

Whether respondent discriminated against petitioner in terminating his employment, either on account of his race or because he had engaged in protected activities?

FINDINGS OF FACT

1. In order to serve as Marine Patrol officers, candidates muse successfully complete a training program at DNR's Marine Patrol Academy, which only accepts one class a year. In 1983, DNR began its officer trainee program, an affirmative action effort to recruit members of minorities as Marine Patrol officers. The idea was to give recruits employment pending the annual beginning of the Marine Patrol Academy course, so that they would not be otherwise committed when classes started. In the interim, these officer trainees accompanied regular Marine Patrol officers, ordinarily in the field at the post nearest the trainee's home, and learned informally about the work.

   
   

2. Ronald D. Jones, who is black, began as a Marine Patrol officer trainee in respondent's Division of Law Enforcement, on October 1, 1984. He and then Captain Thompson had discussed the position in May of 1984, after Clydie Hubbard, DNR's equal employment opportunity coordinator, referred Mr. Jones to Captain Thompson. Mr. Jones' home was in Quincy and the nearest Marine Patrol base on the water was in Carrabelle. Instead of being required to commute five days a week to Carrabelle, he was permitted to report to general headquarters in Tallahassee three days a week, and to Carrabelle two days a week.

   
   

   Weak In Swimming

   
   

3. In the course of their first conversation, Captain Thompson informed Mr. Jones that he would have to pass a physical fitness test in order to be admitted to the Marine Patrol Academy. When Mr. Jones said "he felt he was a little weak in swimming," (T.52) captain Thompson told him that he would administer the test at Mr. Jones' convenience, whenever he felt he was ready to take it. Later in May, when Mr. Jones indicated he felt he was ready, the test was scheduled for June 8, 1984.

   
   

4. On June 8, 1984, Mr. Jones passed every test easily, except for the swimming and floating tests. To pass the swimming test required swimming 300 yards in ten minutes or less. Mr. Jones was unable to swim more than two swimming pool lengths without clutching a rope for support. He also failed the floating test: he could not stay afloat for five minutes without grabbing for something. Captain Thompson told him he could pass the swimming and floating tests later, without having to retake any other portion of the physical fitness test, and suggested that he go to Alicia Crews at Florida State University or check with people at the YMCA or at Florida A & M University for swimming lessons or coaching.

   
   

5. At the time Mr. Jones failed the tests, he was only an applicant for the officer trainee program and had no assurances of being chosen as a trainee. He did not follow the advice to seek help in order to improve his swimming.

   
   

   Numerous Reminders

   
   

6. When he saw Captain Thompson in September of 1984, Captain Thompson reminded him he needed to pass the swimming and floating tests. Captain

   Thompson spoke to him on the telephone, in September of 1984, and, as he had when he had seem him, again told Mr. Jones he had to pass the tests.

   
   

7. When he was hired, on October 1, he was reminded yet again about the swimming and floating tests, and Captain Thompson sent him a copy of the physical fitness requirements, Respondent's Exhibit No. 1, which mentioned that the tests had to be passed. As an officer trainee, he sometimes helped administer swimming and floating tests to others, but always refused offers to try again himself.

   
   

8. Mr. Jones was consistently told he had to pass the swimming and floating tests in order to be admitted to the Marine Patrol Academy. At the time Mr. Jones was hired, DNR had a firm requirement that candidates pass the physical fitness assessment tests before entering the Academy. At one time the policy had been to let people in, if passing seemed to be within reach, but experience had persuaded those in charge that this was a mistake; people who were let in on this basis often actually regressed. Mr. Jones did not seem to be close to passing the swimming and floating tests, in any case.

   
   

9. Early on Mr. Jones was told that training at the Academy would start in February, and written materials reflected this, although perhaps at one time someone told him March. In fact, classes at the Academy began on February 11, 1985. DNR decided to send out letters on January 21, 1985, three weeks ahead of time, so that applicants who held other employment could give notice of two weeks or better to their employers that they would be leaving, in order to enter the Academy. Before mailing these letters, DNR sought to determine how many positions were available. On December 21, 1984, Captain Thompson, sent a letter to Mr. Jones reminding him that he still had not passed the swimming and floating tests and telling him that he would have to make arrangements to do so on or before January 21, 1985. Respondent's Exhibit No. 3.

   
   

   Memo From The Trainee

   
   

10. Four days earlier, on December 17, 1984, Mr. Jones had written Clydie Hubbard, DNR's EEO Coordinator, a memorandum on the subject "GHQ Staff," as follows:

    
    

    Against my better judgment, I deferred writing to you until now. To my knowledge there are no Black employees in GHQ's staff (Florida Marine Patrol). This is a problem not only for Tallahassee, but also the state of Florida, in turn [a]ffecting the Nation as a whole. How long must this problem exist in this department? How am I depicted as ap Black, if the entire GHQ is lilywhite?

    
    

    From the first time I set foot in GHQ, I knew it was time for a change. The training section is located in GHQ, so every employee of the Florida Marine Patrol has to pass through these offices. Thinking of other Black Sisters and Brothers coming to seek employment, they just can't believe their eyes. How can we be treated fairly? All the White faces and not one Black, let you know that racism does exist in 1984.

    Maybe you are not aware, but I think it's time something is done. This is a[n] opportunity for someone to change an ugly situation. People in the know, do not let opportunities go by. They hit at injustice; they hit at evils. They make life great for themselves by making life great for others. Have respect and esteem for every person.

    See beneath their exteriors, know them for what they really are. I'm not here to fight any battles, nor am I here to lose any. The reason I'm telling you these things is because President Reagan told me to. If there are any problems direct them to him.

    
    

    Thank you in advance for your interest in this matter.

    Respondent's Exhibit No. 6

    
    

    He copied the N.A.A.C.P. State Conference; Dr. Elton J. Gissendanner, then Executive Director of DNR; Bob Graham, then Governor of the State of Florida; and Ronald Reagan, President of the United States. He did not, however, copy Captain Thompson, and Captain Thompson was unaware of the existence of this memorandum when he wrote his letter on December 21, 1984, Respondent's Exhibit No. 3, advising Jones that he needed to make arrangements to take and pass the swimming and floating tests on or before January 21, 1985.

    
    

11. When Colonel Ellingsen received a copy of Mr. Jones' memorandum to Clydie Hubbard, on December 19 or 20, 1984, he telephoned Inspector Nash, a black Marine Patrol Inspector in Jacksonville, and asked him to investigate the allegations the memorandum made. Mr. Nash came over from Jacksonville and, after reading the memorandum, had a conversation of some two hours' duration with Mr. Jones. Mr. Jones said he had been personally discriminated against on account of the absence of black faces on the seventh floor of the Commonwealth Building where the Marine Patrol is headquartered. As they talked further, Mr. Nash came to believe that Mr. Jones wanted a job on the seventh floor at general headquarters, perhaps one that would not require swimming.

    
    

12. In January of 1985, Mr. Jones talked things over with Dr. Gissendanner, DNR's Executive Director, who suggested, as others had before suggested, that Mr. Jones make arrangements to work with a swimming coach or otherwise get swimming lessons.

    
    

    Deadline Passes

    
    

13. On January 20, 1984, Major Thompson, as he is now, not having heard from Mr. Jones, telephoned him and instructed him to present himself at his office the following day. Mr. Jones failed to appear at the appointed time. About three hours later, Captain Thompson found him in Colonel Ellingsen's office. The three of them discussed his taking the swimming test. Mr. Jones complained that it was a cold day. Indeed, he testified at hearing that it was six degrees." The pool in which the test was proposed to be given was out of doors, but the water was heated. Colonel Ellingsen and Captain Thompson offered to get into the water with him and told him that that day was the absolute deadline, but he refused to take the swimming test. On that account, Colonel

    Ellingsen advised him in his office that he would be terminated and wrote him a letter terminating him, effective 5:00 p.m. that day.

    
    

14. Colonel Ellingsen knew of the memorandum when he terminated Mr. Jones, but the deadline for taking the physical fitness test was set without reference to any individual, and the requirement that the test be passed before admission into the Academy antedated the memorandum to Clydie Hubbard. There was no evidence that the memorandum precipitated petitioner's discharge or that any other factor entered into the decision aside from the fact that he was originally unable and was subsequently unwilling to try to pass the swimming and floating tests.

    
    

    CONCLUSIONS OF LAW

    
    

15. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1985), to "discharge . . . any individual . . . because of such individual's race, color . . . or national origin. Section

    760.10(1)(a), Florida Statutes (1985). DNR is an employer within the meaning of the statute. It is also "an unlawful employment practice for an employer . . .

    to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section. . ." Section 760.10(7), Florida Statutes (1985).

    
    

16. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Jones, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982). He has the burden initially to prove facts making out a prima facie case that he was discharged on account of race, after which respondent need only articulate a legitimate, nondiscriminatory reason for the termination in order to place upon petitioner the burden of proving that the asserted reason is pretextual Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    
    

17. Assuming, in the present case, that petitioner met his initial burden, he plainly failed to prove that the Marine Patrol did not discharge him for the legitimate, nondiscriminatory reasons given at hearing. The evidence showed that the petitioner was hired with a view towards his being a Marine Patrol officer and that he was discharged because of his apparent inability to swim more than twice the distance across a swimming pool or to stay afloat for five minutes. Such requirements are clearly bona fide occupational requirements, despite petitioner's suggestion otherwise in his proposed recommended order.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That FCHR dismiss petitioner's petition for relief from an unlawful employment practice.

DONE and ENTERED this 14th day of August, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3716

Petitioner's proposed findings of fact Nos. 3 and 7 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 1, the testimony was that he swam two lengths of the pool which a witness testified was 50 feet but may well have been 50 yards.

With respect to petitioner's proposed finding of fact No. 2, admission to the academy was conditioned on passing the physical fitness tests.

Petitioner's proposed finding of fact No. 4 accurately reflects the evidence as far as it goes, but Captain Thompson was unaware of the complaint when he wrote the letter.

Petitioner's proposed finding of fact No. 5 has been rejected. The evidence did not establish retaliation on the part of DNR.

With respect to petitioner's proposed finding of fact No. 6, petitioner was terminated for failure to take the swimming test on January 21, 1985, or on any other day before then, going back to May of 1984.

With respect to petitioner's proposed finding of fact No. 8, being able to swim 300 yards could mean the difference between life and death for a marine patrol officer.

Respondent's proposed findings of fact Nos. 1, 3, 4, 5, 7, 8, 9, 10, 11,

12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23 and 24 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact No. 2 has been adopted, in substance, except that the record cited does not support a finding that a trainee's salary is 90 percent of a sworn officer's. Petitioner was paid $1,047.48 per month.

Respondent's Exhibit No. 4.

With respect to respondent's proposed finding of fact No. 6, the testimony was that he swam two lengths of 25 feet each, but the pool may in fact have been

25 yards long.

With respect to respondent's proposed finding of fact No. 16, petitioner did not ask for a different job from Col. Ellingsen, although the evidence did not show that he had refused or declined any request that he ask for a job.

COPIES FURNISHED:

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

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Mr. Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, Florida 32399

Ronald D. Jones

211 Tropicaire Street Tallahassee, Florida 32304

Docket for Case No: 86-003716

Orders for Case No: 86-003716