STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRAHIM DERDER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1258

) A T & T INFORMATION SYSTEMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, duly assigned Hearing Officer of the Division of Administrative Hearings, on September 23, 24, and 25, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Vidal Marino Velis, Esquire

2100 Coral Way, Number 300

Miami, Florida 33145

For Respondent: Sherryll Martens Dunaj, Esquire

501 City National Bank Building

25 West Flagler Street Miami, Florida 33130

BACKGROUND AND PROCEDURE

Petitioner testified on his own behalf and called as his only other witness, Respondent's employee, Joni Mathis, as an adverse witness. Petitioner offered forty-nine exhibits and had forty-one exhibits admitted in evidence.

Respondent's ore tenus motion for involuntary dismissal at the close of Petitioner's case in chief was denied without prejudice to renew. Thereafter, Respondent presented the oral testimony of Beth Jones, Steve Shipp, and Barbara Wayne, having earlier called Steve Holmes out of order, and had admitted seventeen exhibits. Several exhibits were marked but were not offered by Respondent; others were withdrawn. Petitioner did not submit any rebuttal.

Ruling upon Respondent's renewed ore tenus motion for involuntary dismissal was reserved for this Recommended Order and is addressed in the following conclusions of law.

Respondent provided a copy of the transcript of formal hearing, and each party has filed proposed findings of fact and conclusions of law, the findings of fact of which have been ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. The parties' respective conclusions of law and Petitioner's Memorandum Of Law do not require specific

rulings pursuant to Section 120.59(2), Florida Statutes, and although they have been duly considered, specific rulings thereon have not been included in the appendix.

ISSUE

Whether the Respondent committed unlawful employment practices as alleged in the Petition for Relief served by mail March 20, 1987. Ten subparagraphs of that Petition address individual allegations, each of which are discussed fully in the following conclusions of law.

FINDINGS OF FACT

1. Petitioner Brahim Derder is a citizen of Algeria with permanent resident status in the United States. At all times relevant, he was an adult male resident of the State of Florida, classified by his employer as "Black." Petitioner is a person within the meaning of Section 760.02(5), Florida Statutes. Petitioner graduated from the University of Miami with a Bachelor's Degree in Industrial Engineering in 1980. Prior to his employment with Respondent American Telephone and Telegraph Information Systems (ATTIS), he was employed from 1981 to 1983 by another subsidiary (Southern Bell) of Respondent's parent company, American Telephone and Telegraph (AT&T), as a marketing representative in Miami, Florida.

   
   

2. Respondent ATTIS is in the business of selling and leasing data and voice terminal equipment. Petitioner became an employee of ATTIS in 1984. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes.

   
   

3. Petitioner was terminated by Southern Bell as a result of his alleged failure to pass one of its required training courses. He was subsequently reinstated as a result of a complaint resolution pursuant to Southern Bell's own internal affirmative action program, also known as an equal employment opportunity (EEO) complaint resolution. Thereafter, Petitioner continued to be uneventfully employed by Southern Bell for about a year. Approximately August 1983, AT&T began preparation for court-ordered divestiture. Divestiture required the separation of the Bell operating companies from AT&T. Petitioner was assigned to a division within ATTIS in Miami due to the divestiture and its resulting reorganization.

   
   

4. Once within ATTIS, Petitioner successfully protested through internal ATTIS-EEO channels a "limited contribution" performance rating given him upon his exit from Southern Bell, and obtained a change to "not rated," which rating, in turn, resulted in a modest pay increase.

   
   

5. The subsidiaries of AT&T, like their parent company, had established formalized but voluntary internal EEO/Affirmative Action programs. At no time prior to Petitioner's termination by ATTIS in November 1985, did Petitioner file any charges of discrimination with any external governmental agency, including but not limited to the Federal Equal Employment Opportunity Commission or the State of Florida Commission on Human Relations.

   
   

6. In 1984, ATTIS downsized its work force and Petitioner's position was "surplused." Petitioner was offered a position with ATTIS in Atlanta, Georgia but rejected it and located a job at ATTIS' Data Systems operation in Orlando, Florida.

7. Once at ATTIS in Orlando, Petitioner worked under the supervision of four different managers in the course of approximately two years until his involuntary termination on November 18, 1985. This was a period of ongoing reorganization for the AT&T subsidiary and personnel changed frequently. Also, normal employee review and appraisal procedures were not always followed to the letter. Nonetheless, none of the four different ATTIS supervisors for whom Petitioner worked in that period of time found Petitioner's job performance to be satisfactory.

   
   

8. Petitioner worked under Lowell Rogers' direct supervision from approximately April 1984 until the end of that year. Because Mr. Rogers accepted a position in New Jersey, he was not always available on ATTIS' Orlando jobsite even though he technically continued to have an office there until well into 1985. The written performance appraisal prepared for Rogers' signature reads in pertinent part:

   
   

   Based upon his exposure to training in the areas listed above, his performance has not been what would normally be expected within the given time frames.

   * * *

   Mr. Derder must devote both the time, motivation, and sincere desire to learn and adapt to both technical and development tasks which would allow him to be a more productive employee. It appears that other factors (relocation and job classification issues, etc.) consume far too much time and as a consequence, his training and productivity has suffered to date. (P-3, P-4)

   
   

   The appraisal was not, however, wholly negative.

   
   

9. Steve Holmes, Petitioner's second supervisor, showed Rogers' appraisal to Petitioner approximately April 22, 1985 without Rogers' signature thereon (P- 3), and Petitioner made the cognitive leap without any valid foundation, that Holmes (not Rogers) had negatively rated Petitioner for discriminatory reasons only. Rogers did not physically sign this negative appraisal until May 16, 1985 (P-4). Petitioner's confusion concerning Rogers' negative appraisal is reasonable because the appraisal had been signed first by Rogers' supervisor, the District Manager, on January 22, 1985, before being returned for Rogers' signature and Petitioner had received a merit increase on his year's employment anniversary in April 1985 based on his 1984 service, but no discriminatory motivation or act was proven with regard to Rogers' evaluation.

   
   

10. Steve Holmes was Petitioner's supervisor at ATTIS in Orlando from January 1985 until May 16, 1985. His exit evaluation of Petitioner was also negative as follows:

    
    

    Brahim has been substantially distracted from the performance of his job by an almost obsessive belief that he has been unfairly treated with regard to his transfer into

    AT&T-IS ... Brahim needs to treat deadlines with more urgency. He needs to plan his work more effectively so as to identify possible problem areas and develop remedies before

    they become overwhelming. He needs to double check his work for errors in data (typo's) and information ... (P-12)

    
    

11. Petitioner's work for Holmes was to gather data for a report on the Integrated Services Digital Network (ISDN) project. The project involved conversion of several small lines and switches to bigger ones at many locations nationwide. The information gathered was generated from numerous sources geographically scattered throughout the United States. Although component information changed daily as the actual switchovers progressed, the overall intent behind the report was to assemble data, collate it into meaningful graphic tables and verbal explanations, and present it as a finished printed report which could be published monthly and presented to higher levels of management so that the past month's progress could be assessed and future planning decisions could be wisely made. Petitioner's view was that a computer/word processor was necessary to complete his task, whereas management felt Petitioner's input prior to typing of the report could be done with paper and pencil or possibly with paper and pencil and a calculator. Petitioner was nonetheless permitted to use an IBM-PC computer assigned to a peer employee. Petitioner felt his ISDN report had to be rewritten entirely each time there were any data changes whatsoever because the different sections within the report were interdependent. Management had contemplated that because the report would be published monthly, at some point each month Petitioner would reconcile all available data for that month and publish the report. Although Petitioner submitted many draft versions of the ISDN report, which was intended to be published monthly, a final version of the report was never completed by Petitioner to Holmes' satisfaction over at least four months of report drafts. Mr. Holmes felt that the Petitioner was not properly assessing the interdependent sections and relating them to one another so as to give an accurate overview for any single month. Early in their association, Holmes called these problems to Petitioner's attention. Holmes had contemporaneously provided Petitioner with an analysis of his May 1985 ISDN submission, pointing out over 300 alleged errors by Petitioner. At formal hearing, Holmes expressed his concerns with regard to several months' submissions by showing one mathematical error of $300,000 on one of Petitioner's submissions, and by indicating that such an error was one example of several similar significant errors made repeatedly by Petitioner. Holmes indicated that the $300,000 error illustrated how the interdependence of rapidly changing data had not been accounted for by Petitioner, who apparently changed data entries piecemeal, as the data became available, without reconciling data as of one single given date each month. Holmes made distinctions between Petitioner's errors of omission, which Holmes had called to Petitioner's attention and which Petitioner often could rectify, and Petitioner's errors of internal contradiction within the reports which Petitioner seemed unable to comprehend. Simply stated, Petitioner always had some part of the report "out of sync" with another or other parts. Petitioner incorrectly attributes Holmes' criticisms of this and all of his ISDN report submissions to mere cosmetic or stylistic opinions or to Holmes' unawareness of the most up-to-date data. Holmes eventually would not accept Petitioner's relying on ISDN project delays (field implementation delays not attributable to Petitioner) as excuses to cover up ISDN report delays which clearly were attributable to Petitioner. Holmes described Petitioner's problem with the entire project as one of Petitioner's inability to conceptualize the project as opposed to Petitioner's unwillingness to do the project. In assessing the two witnesses' respective approaches to the report, Mr. Holmes' explanations are less emotional, more reasonable, more detailed, and more credible than are Petitioner's.

12. Petitioner used ATTIS' internal EEO procedures to protest his performance appraisals by Rogers and Holmes and to object to the paygrade assigned to him when he came to work with Orlando ATTIS. Once in Orlando, Petitioner had discovered that the maximum of his paygrade range at Orlando ATTIS was lower than the maximum of his paygrade range at Miami ATTIS had been. Petitioner showed no reason management should correct Petitioner's inadvertent error but claimed Holmes blocked attempts which otherwise would have been successful to upgrade Petitioner's paygrade. Holmes denies it, stating he had no such authority. Concerning Petitioner's paygrade adjustment request, there is no space on the form requiring anyone in Holmes' position to approve it. Apparently, a higher superior named Ron Phillips signed the request for a concurrence by David L. Oertle and then signed "R.E. Phillips for David L. Oertle" [emphasis supplied] in the space wherein Mr. A Oertle's concurring signature was required (P-10). Why the paygrade adjustment did not go through under these peculiar circumstances or if there were other management considerations why it was not consummated is anybody's guess, but discrimination or interference by Mr. Holmes with regard to the paygrade adjustment request was not proven. Holmes admits he became aware of an internal EEO investigation of himself requested by Petitioner with regard to the failed pay adjustment request as set out infra. The paygrade adjustment was never a "promotion" as characterized by Petitioner.

    
    

13. Mr. Holmes does not deny that he was aware in December 1984 that Petitioner had filed two previous internal EEO complaints at Southern Bell and at Miami ATTIS. He discussed these with Petitioner when Petitioner first joined his workforce because one complaint was ongoing and Holmes was afraid it would detract from some of Petitioner's work time. Early in 1985, Holmes noted these concerns in a personal journal he used to record many different kinds of events at his office. Petitioner acknowledged that he threatened Holmes with an EEO complaint at Orlando ATTIS if Holmes would not sign off on the paygrade adjustment request (TR 91). Holmes, already leery of Petitioner, and increasingly dissatisfied with Petitioner's job performance, gradually began to record in his personal journal reminders relating to Petitioner's job performance. In approximately April, 1985, upon suggestions from internal EEO personnel, Holmes began to more carefully document in his journal his confrontations with, and performance-related concerns about, Petitioner. When Petitioner discovered that portions of Holmes' journal relating to him had been circulated by Holmes to upper management, Petitioner perceived Holmes' actions as purely retaliatory for his EEO involvement and prepared by Holmes solely to get Petitioner fired for discriminatory reasons attributable to racial, ethnic, and national bias. I find that although Holmes' journal includes references to Petitioner and Petitioner's EEO involvement, the entries taken as a whole are reasonable under the circumstances and anticipatory of future need to document employee problems rather than evidence of discrimination against an employee for that employee's exercise of EEO involvement. Petitioner's allegations that Steve Holmes was improperly and unlawfully motivated for this journal are not adequately substantiated.

    
    

14. Holmes declined Petitioner's request to sign his AB-36 form (P-19) so as to permit Petitioner to transfer divisions within ATTIS because Holmes felt Petitioner's past job performance for him did not merit the transfer to another job in the international or out-of-state geographic areas and in the substantive areas Petitioner had requested and because Petitioner presented the form to him simultaneously with Petitioner's move to another workforce within the same district. Also, the jobs listed were not necessarily open.

15. In that new workforce, Petitioner was supervised by his third supervisor, Gus Schulties, for what was admittedly a very short period of time, approximately three months, one month of which Petitioner was on vacation. The credible evidence as a whole does not establish that Petitioner was transferred due to any belief in the truth of Petitioner's charges against Rogers or Holmes, but that it was in the nature of diffusing a bad situation created by Petitioner and giving Petitioner an opportunity to perform better. Around August 20, 1985, Schulties was reassigned and replaced by Barbara Wayne. Schulties' evaluation of Petitioner includes the following commentary:

    
    

    I think he should have been able to do more on his own effort. I do not believe he has the initiative to get deeply involved.

    * * *

    This employee needs development in many aspects of the data communications environment. (P-32)

    
    

    Schulties' written evaluation was signed by Petitioner's next supervisor, Barbara Wayne, because Schulties had been relocated on the date it was due. Later, Schulties concurred in the decision to terminate Petitioner.

    
    

16. Mr. Schulties was present when Ms. Wayne fired Petitioner on November 18, 1985. Petitioner had worked for Wayne for approximately three months. While working for Ms. Wayne, Petitioner was orally counselled several times concerning his inability to conceptualize job assignments so as to achieve results, and these sessions were contemporaneously documented by Wayne, whose

    testimony at hearing was consistent and credible. Petitioner never achieved the objectives which directly applied to his job and which were set for him by Ms.

    Wayne.

    
    

17. While working under Holmes, Schulties, and Wayne, Petitioner produced a number of what might be termed "self-assigned projects" of cosmetic or internal employee relations value, but these projects were not always directly related to the Petitioner's job or his employer's project objectives.

    
    

18. While Petitioner established that ATTIS management would not approve all of the company training he wanted, his requests for such training were not always reasonable in relation to the subject matter of projects to which he was assigned, nor were his requests always reasonable in relation to management standards of cost-effectiveness and the employer's need for Petitioner's presence on the job. All of management's denials or non-approvals of training were reasonable in the context of balancing of costs against expected productivity to be gained from the training. Petitioner was, in fact, approved for, and attended, several training courses, and was paid overtime when he taught himself computer programs on nights and weekends, even though the use of the computer was nonessential to his job duties from management's perspective. Petitioner never established by direct credible evidence that other employees in similar circumstances at ATTIS Orlando were given the training he was denied or that his job truly required the training which he was denied.

    
    

19. Petitioner speculated that certain employees resented him because he had a Bachelor's Degree which they did not have, but "college graduate" is not a statutorily protected classification. Several employee witnesses had at least some college courses. A college degree was not necessary for employment or promotion at ATTIS. Employee resentment that Petitioner did not meet deadlines and avoided necessary tasks he felt were below him did exist.

20. Petitioner's initial internal (P-15, P-16) and external (P-40, P-41) complaints did not raise an issue of verbal slurs of national or racial tone, but his Petition for Relief does. At hearing, Petitioner initially accused supervisors Wayne and Holmes, and a coworker, Shipp, of making ethnic jokes and derogatory comments about Petitioner's race and national origin. However, Petitioner conceded that neither Schulties nor Rogers were ever out of line and that Wayne had very little conversation with Petitioner about his ethnic background or race. Petitioner testified that his relationship with Mr. Shipp was satisfactory except that Mr. Shipp repeatedly made comments and jokes concerning Petitioner's light skin and not being as black as a typical African; wanted to know about Petitioner's wife when Petitioner told Mr. Shipp that he had married a black woman; made some discriminatory comments concerning Petitioner's education and schooling in Africa; referred to Petitioner's family as "zebras" and "camel drivers," and suggested Petitioner had bought his University degree. As might be expected, all ATTIS personnel denied making any racial or ethnic slurs. Giving Petitioner every benefit of the doubt that some hurtful, biased comments may have been made by Shipp and Holmes, Shipp was only Petitioner's team leader for a short period of time when Petitioner was assigned to Barbara Wayne, and he was essentially Petitioner's peer. Shipp, like other employees, had input to Wayne's final evaluation, but he was not the sole source of Wayne's displeasure with Petitioner's performance, and Shipp never evaluated Petitioner. Petitioner was transferred away from Holmes' supervision in response to Petitioner's internal EEO complaints against Holmes, which complaints apparently were never verified by EEO and which complaints apparently never alleged any record of ethnic or racial slurs by Holmes. Petitioner concedes that he did not wish to make much of the comments and jokes around him and also took offense at most of his coworkers declining his invitations to coffee and lunch. Shipp did occasionally eat and take breaks with him. There apparently was little socializing in this workforce and Petitioner seemed to misunderstand that. It was also clearly established that the Respondent employer has in place an aggressive internal anti-discrimination grievance and affirmative action policy and procedures which Petitioner had free access to and which repeatedly gave him the benefit of the doubt. It was also affirmatively put forth by Petitioner that he made a point of confronting Mr. Schulties, Ms. Wayne, and Mr. Shipp and of telling each of them that he had had successful internal EEO actions, and/or that he had complained about Holmes before any one of them had any significant contact with him. (TR 176-177, 242, 251-252). Petitioner also affirmatively put forth that he "begged" Schulties and Wayne not to be prejudiced against him almost upon first meeting with each. I conclude that this overly aggressive and hypersensitive behavior on Petitioner's part resulted in his misconstruing some conversations and constituted a non- pretextual reason for Wayne to carefully document each meeting with Petitioner.

    
    

21. Petitioner showed that one employee (Karnes) was negatively rated by Ms. Wayne for the first time but was permitted additional time to improve his performance without immediate termination, but Karnes' single negative evaluation does not correlate to Petitioner's negative ratings from four successive supervisors so as to demonstrate unequal treatment of Petitioner.

    
    

22. Petitioner perceives all criticisms of, or negative comments about, his job performance as incorrect and without merit but the accuracy of his perception has not been adequately substantiated in this proceeding, and I find that his poor job performance was his employer's and supervisors' primary motivation in terminating Petitioner's employment. Petitioner's charges of discriminatory treatment are based largely on his perception or conjecture that there could be no nondiscriminatory reason for management's actions since he had

    the academic qualifications to do the job and the willingness to do it.

    However, his repeated failure to timely complete projects to his employer's specifications is sufficiently documented in the record. Petitioner's education and ability notwithstanding, Petitioner's performance was unacceptable.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. Petitioner's original Petition for Relief alleged as unlawful employment practices:

    
    

    1. The Respondent's discriminatory actions against Petitioner include but are pot limited to the following:

       1. The Respondent denied Petitioner's essential training in his field and work related activities while allowing others equally situated to participate in training.

       2. The Respondent harassed and intimidated the Petitioner by constantly criticizing and humiliating him because of his race, color, and national origin.

       3. The Respondent intentionally disregarded and denied an already approved promotion by another (previous) supervisor within the Company.

       4. In addition to the foregoing, the Respondent through its supervising personnel maintained a diary in order to justify the employers [sic] discriminatory acts and retaliation.

       5. The Respondent committed unlawful employment practices by intentionally and maliciously discriminating against the Petitioner as described above with respect to his compensation, terms, conditions or privileges of employment because of his race, color, and/or national origin.

       6. The Respondent's unlawful employment practice by intentionally and maliciously discriminated [sic] against the Petitioner as described above because the Petitioner opposed Respondent's practices made unlawful under State Statutes.

       7. As a direct proximate result of the above described unlawful acts of discrimination and retaliation, by the Respondent, the Petitioner has suffered damages including but not limited to the loss of salary, loss of proper training, and other concomitant damages.

       8. In addition to the foregoing, Respondent prevented the Petitioner from lateralling [sic] moving to another

          division in order to maintain its intentional and malicious discriminating practices against the Petitioner.

       9. The Respondent unlawfully and wrongfully discharged the Plaintiff.

       10. Respondent while maintaining a pattern and or practice of discrimination made every effort to justify or maintain pretexes [sic] for its unlawful employment practices against the Petitioner.

           
           

25. Under the provisions of Section 760.10(1)(a), Florida Statutes, it is an unlawful employment practice for an employer:

    
    

    To discharge or to fail or 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, natural origin, age, handicap, or marital status.

    
    

26. Subsection (8)(b) of the same statute provides, however, that:

    
    

    This subsection shall not be construed to make unlawful rejection or termination of employment when the individual applicant or employee has failed to meet bona fide requirements for the job or position sought or held...

    
    

27. When an individual alleges he is subjected to disparate treatment in employment because of his race or national origin, he has the initial burden of establishing, prima facie, a case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Once a complainant has done so, the burden of going forward then shifts to the employer to demonstrate a nondiscriminatory reason for the action complained of. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Where a legitimate, nondiscriminatory reason for the employer Respondent's actions is shown, the claimant then must establish and prove that the proffered reason was in fact "pretextual." Texas Department of Community Affairs v. Burdine, supra; Simmons v. Camden Board of Education, 757 F.2d 1187 (11th Cir. 1985), reh'g en banc den., 767 F.2nd 938 (11th Cir. 1985), cert. den. 106 S.Ct. 385 1985. See also, Suson v. Zenith Radio Corp. 763 F.2d 304 (7th Cir. 1985). The same burden of proof applies in a claim of retaliatory discharge where there is no direct evidence of retaliation. See Doyal v. Marsh, 777 F.2d 1526 (11th Cir. 1983), and Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).

    
    

28. The elements of a prima facie case of retaliatory discharge are (1) the claimant engaged in statutorily protected activity, (2) that there was an adverse employment action, and (3) that there was a causal link between the two. Doyal v. Marsh, supra. Respondent argues that because in the instant case there was no evidence that Petitioner ever before this proceeding prosecuted or instituted a statutory complaint of racial or national origin (or any other) discrimination with any governmental agency, the question of causal link need not be reached. Petitioner complained about various work events but only

    through various internal voluntary affirmative action plans, and Respondent submits that where there are no prior federal Equal Employment Opportunity Commission or State of Florida Commission on Human Relations charges of discrimination and alleged retaliatory acts resulting from such, no "statutorily protected" activity has been proven, and upon this basis, Respondent would be entitled to have its motion to dismiss Petitioner's charge of retaliatory discharge for prosecution of EEO actions granted. These arguments are not persuasive, and the motion to dismiss is denied. However, the only evidence of causal link is Petitioner's, and Respondent's evidence rebutting Petitioner's prima facie case of retaliatory discharge is clear and convincing. It is probable that supervisors documented confrontations with Petitioner and delayed terminating him as a result of his prior successful internal EEO complaints, but he was finally terminated for the non-pretextual reasons that he did not fulfill his job assignments and performed poorly in his job over an extended period of time.

    
    

29. Petitioner failed to establish a prima facie case that Respondent had denied him essential training for discriminatory reasons while allowing others equally situated to participate in such training.

    
    

30. Respondent presented more than adequate evidence to refute the prima facie case concerning denial of lateral transfer and salary adjustment and to establish nondiscriminatory reasons for these denials and that the reasons were not merely pretextual. No evidence concerning a true "promotion" was adduced at formal hearing. If uppermost management and the personnel department had approved the salary adjustment sought by Petitioner it would have gone through despite any failure of Holmes to sign the request. (P-10) Even if Petitioner's allegations as stated could be accepted, the record is devoid of any proof that employees similarly situated as Petitioner received disparate treatment. Likewise, there is insufficient credible testimony that the salary adjustment as sought by Petitioner was justified just because Petitioner inadvertently accepted a lower paygrade while intending to accept a higher paygrade when he transferred to Orlando. In light of all the circumstances, Mr. Holmes' keeping a record of his confrontations with Petitioner within a journal devoted to a variety of subjects and his refusing to sign off on a lateral transfer (P-19) which would have cost the company a great deal of money when the employee seeking the move was not currently performing satisfactorily, are entirely reasonable business decisions and do not evidence any racial or nationality biased discrimination.

    
    

31. Petitioner established by his testimony that he felt intimidated and humiliated by certain ethnic and racial slurs. However, an employee may not be unreasonably sensitive to his working environment, Johnson v. Bunny Bread, 646 F.2d 1250 (8th Cir. 1981). Whether or not harassment at the work place is sufficiently severe and persistent to affect seriously the psychological well- being of an employee is a question to be determined with regard to the totality of the circumstances, Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1986), Henson v. City of Dundee, 682 F.2d 897 711 (11th Cir. 1982), Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234 (5th Cir. 1971), cert. den. 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed. 2d 343 (1972). In Rogers the court held "[We] do not wish to be interpreted as holding that an employer's utterance of an ethnic or racial epithet which engenders offensive feelings in an employee falls within the proscription of [Title VII]." Even if it be assumed for argument's sake that an occasional derogatory comment of a racial or ethnic nature was made, Petitioner did not show that such occasional usage was sufficiently "excessive and opprobrious" or so "pervasive" as to amount to an unlawful employment practice. See, Barber v. International Broth. of

Boilermakers, 778 F.2d 750 (11th Cir. 1985); Henson v. City of Dundee and Rogers

v. Equal Employment Opportunity Commission, supra. Moreover, ATTIS, through its aggressive internal affirmative action program was actively seeking to eliminate all discriminatory practices whenever notified.

RECOMMENDATION

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

RECOMMENDED that the Human Relations Commission enter a Final Order dismissing Petitioner's Petition for Relief.

DONE and RECOMMENDED this 25th day of February, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 25th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1258

The following constitute rulings pursuant to section 120.59(2), Florida Statutes, upon Petitioner's and Respondent's respective proposed findings of fact (PFOF).

Petitioner's PFOF

1-2. Except as subordinate or unnecessary covered in FOF 1. 3-4. Irrelevant.

1. Except as irrelevant, covered in FOF 1.

2. Rejected as not supported by the greater weight of the credible competent evidence but see FOF 22.

7-18. The only relevant and material history of Petitioner's relationship with Southern Bell is set forth in FOF 3. To the extent these proposals are not covered there, they are irrelevant or immaterial to any dispositive issue in this cause.

19. Covered in FOF 6.

20-23. Except as covered in FOF 6-7, rejected as immaterial.

1. Covered in FOF 8.

2. Not supported by the greater weight of the credible competent evidence as set forth in FOF 8. Job descriptions are not dispositive of any material issue in this cause. Petitioner received oral and written job descriptions at appropriate times.

3. Covered in FOF 9.

4. Covered in FOF 9-10.

28-29. Rejected as not supported by the greater weight of the credible competent evidence which resulted in the FOF 12-13. Had uppermost management approved the change, it would have gone through and there is insufficient proof it was justified just because Petitioner inadvertently accepted a lower pay grade and meant to accept a higher pay grade or that Petitioner interpreted a lateral transfer as being lateral in all respects including salary, when it was not. Peripherally, see the conclusions of law (COL).

30-32. Subordinate and unnecessary but it is noted that Petitioner's PFOF 31-32 admits receipt of a job description in this position and workforce. See peripherally FOF 11.

1. Covered in FOF 11.

2. Immaterial.

35-40. The proposals are mostly mere recitations of part of Petitioner's testimony as opposed to statements of ultimate or even material fact.

Additionally, as stated, these proposals are not supported by the greater weight of the credible evidence as a whole. See FOF 11.

41-42 and 44. Immaterial and not dispositive of any issue at bar.

43 and 45. Covered in FOF 10-11, and 22.

1. Rejected as not supported by the greater weight of the credible evidence as a whole. Moreover, Petitioner admits elsewhere in the record that if being told why and how his job performance needed improvement was counselling, the counselling occurred. The Hearing Officer recognizes that "counselling," "criticism," and "harassment" are all subjective words and has considered both the credibility and perspective of all witnesses' testimony and has considered all the documentary evidence in making these findings of fact.

2. Covered in FOF 11.

49. Rejected as not supported by the greater weight of the credible evidence and as related in FOF 11.

48, 50-52. Except as subordinate and unnecessary, covered in FOF 8- 10.

1. Except as subordinate and unnecessary, covered in FOF 19.

2. Covered in FOF 12-13.

3. Covered in FOF 10. There was some overlapping of supervisory- authority as found in FOF 7-12. However, the minimum inconsistencies in testimony and documentation recited by Petitioner's proposal are accounted for due to early failure to document, the on-again, off-again supervision of Mr. Rogers, and Petitioner's mid-year transfer to Mr. Schulties' supervision. Petitioner's proposal is therefore not consistent with the record as a whole, is immaterial, and is not dispositive of any material issue at bar.

56-72. FOF 13-14 cover relevant facts as supported by the greater weight of the credible competent evidence as a whole. Petitioner's proposals are not consistent among themselves and are mostly recitations of Petitioner's testimony concerning his own internal but unsubstantiated perceptions of events, and are rejected for those reasons and in certain respects, as demonstrated by the facts as found in FOF 13-14 and FOF 22, are not supported by the record as a whole.

Other rejected material is rejected as subordinate or unnecessary as is also demonstrated by the ultimate facts as found in the recommended order.

1. Rejected as not supported by the greater weight of the credible evidence as a whole. See FOF 11.

2. Most of this proposal is rejected as subordinate and unnecessary. The remainder is rejected as not supported by the record as a whole. See facts as found in FOF 12- 15, and 20.

3. Covered in FOF 20.

76 and 78. Subordinate and unnecessary and not dispositive of any issue at

bar.

77. Rejected as not supported by the greater weight of the evidence as a

whole except as covered in FOF 18.

79. Covered In FOF 17.

80-81. To the extent supported by the greater weight of-the credible competent, substantial evidence of record, these PFOF are covered in FOF 15-16; otherwise rejected as not so supported.

82, 86, 87. Rejected as not supported by the greater weight of the credible evidence as a whole and as not dispositive of any issue at bar; Petitioner received a job description under a different title plus considerable oral explanation. If Wayne did not reply in writing to every memorandum, it is immaterial.

83-85. Rejected as-covered in FOF 18. Petitioner did not establish that employees in similar circumstances were given more or different training than he was denied.

88-99. Again these are largely recitations of Petitioner's testimony rather than statements of ultimate fact. None are necessary or dispositive of a material issue at bar. The requests for additional work are immaterial since Petitioner was consistently being told he was not satisfactorily completing his basic assignments. See FOF 16, 20, and 22. Petitioner's PFOF 97 and 98 are also immaterial in that Petitioner appropriated all team credit to himself and passed off all personal inadequacies onto the team. See FOF 17 and 22. Except as set out supra, the PFOF 88-99 are subordinate and unnecessary.

100. Subordinate and unnecessary, but see FOF 16 and 17.

101-104. Except as subordinate and unnecessary or as not supported by the greater weight of the credible evidence, covered in FOF 19-20.

105-107. Rejected as stated because they are misleading of the record as a whole. Subject matter covered in FOF 15-16 and 20.

108-114. Except as subordinate or unnecessary or as not supported by the greater weight of the evidence, covered in FOF 15-16.

115. Unnecessary.

Respondent's PFOF

1,3. Covered in FOF 1.

2. Covered in FOF 2-6.

1. Covered in FOF 7, 15-16.

2. Covered in FOF 1-6.

6-8. These proposals are generally rejected because they consist of many paragraphs, sentences, footnotes, and quotations which are not appropriately divided out and numbered pursuant to Chapter 120, Florida Statutes, and Rules 22I-6.24 and 22I-6.31, Florida Administrative Code, and instructions contained in the post-hearing order and authority cited therein, and which contain lengthy and burdensome recitations from documentary exhibits and of testimony rather than statements of ultimate facts to be found. Further, they contain large quantities of subordinate and unnecessary material interspersed with mere argument of counsel. Where they could be accepted, they are covered in FOF 7- 22.

COPIES FURNISHED:

Donald A. Griffin, Executive Director Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Vidal Marino Velis, Esquire 2100 Coral Way, Number 300

Miami, Florida 33145

Sherryll Martens Dunaj, Esquire

501 City National Bank Building

25 West Flagler Street Miami, Florida 33130

Docket for Case No: 87-001258

Orders for Case No: 87-001258