STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH SCOTT SHEPHERD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3407

)

REDMAN HOMES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on October 21, 1987 in Lake Wales, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Joseph Scott Shepherd, pro se

108 Flores Way

Auburndale, Florida 33823

Respondent: Jeffrey W. Bell, Esquire

600 Peachtree At The Circle Building 1275 Peachtree Street, Northeast Atlanta, Georgia 30309

At the hearing, the Petitioner testified on his own behalf and called Leon Crouse, Tim Powers, Larry Jayne, Frederick W. Moulder, Charles Rogers and Linda Johnson, all of whom are employed by Respondent; Petitioner also introduced eight exhibits. Respondent called Leon Crouse to testify and introduced fifteen exhibits; one exhibit which Respondent sought to introduce was rejected. A transcript of the final hearing was filed on November 9, 1987, and the parties were allowed ten days thereafter to file proposed recommended orders. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

The issue in this case is whether Respondent unlawfully discriminated against Petitioner based upon his handicap by terminating his employment on or about November 6, 1986.

FINDINGS OF FACT

1. Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations.

   
   

2. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes.

3. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977.

   
   

4. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated.

   
   

5. All employees are evaluated within thirty days of their employment by Respondent.

   
   

6. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation.

   
   

7. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder

   1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five.

   
   

8. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough.

   
   

9. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination.

   
   

10. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available.

    
    

11. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate, non- discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, 256. See also Anderson

    v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

    
    

14. In order to establish a prima facie case of handicap discrimination, Petitioner must show that: (1) he is handicapped, (2) he performed or is able to perform his assigned duties satisfactorily, and (3) he was terminated despite his satisfactory performance. McDonnell Douglas, supra; Wolfe v. Department of Agriculture and Consumer Services, 8 FALR 426 (FCHR September 27, 1985). Petitioner is clearly handicapped, but he has failed to establish a prima facie case of discrimination because he has not shown he could satisfactorily perform his assigned duties. He was terminated due to poor production and his inability to increase production after being counselled and warned. He continues to insist he was working fast enough. Reasonable accommodation was not requested by Petitioner.

    
    

15. Absolutely no evidence has been offered to establish that Petitioner was terminated due to his handicap. Section 760.10(8)(b), Florida Statutes, specifically recognizes that it is not an unlawful employment practice for an employer to observe the terms of a system which measures earnings by quantity or quality of production, and further that it is not unlawful to terminate an employee when he has failed to meet bona fide requirements for the job or position. There has been no showing that Respondent's production demands were unreasonable. Other employees met and exceeded those demands, but employees who did not meet such bona fide demands were terminated as a group. Petitioner was not singled out for discriminatory treatment.

    
    

16. Despite Petitioner's allegation that Respondent has discriminated against him on the basis of his handicap, the overwhelming weight of evidence shows that the Petitioner has not established a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, non-discriminatory reasons. Howard Johnson Co. v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987). Respondent has articulated legitimate reasons for terminating Petitioner, particularly in view of his refusal to recognize any need to increase production after counselling and warning. Thus, the Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent.

DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1987.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407

Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary.

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 6.

3. Rejected as irrelevant and unnecessary.

4. Adopted in Finding of Fact 4.

8-9 Adopted in Finding of Fact 8.

10-11 Rejected as irrelevant and unnecessary.

12 Adopted in Finding of Fact 4.

13-16 Adopted in Finding of Fact 7.

1. Rejected as irrelevant and unnecessary.

2. Adopted in Finding of Fact 11.

3. Adopted in Finding of Fact 1.

COPIES FURNISHED:

Joseph Scott Shepherd

108 Flores Way Auburndale, Florida 33823

Jeffrey W. Bell, Esquire

600 Peachtree At The Circle Building 1275 Peachtree Street, N.E.

Atlanta, Georgia 30309

Docket for Case No: 87-003407

Orders for Case No: 87-003407