STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WESLEY LOCKHART, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-1223

)

OLIN CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on June 27, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Curley R. Doltie, Esquire

118 North Gadsden Street Post Office Box 1325 Tallahassee, FL 32302

For Respondent: Dorothy J. Kelley, Esquire

Labor and Employment Law Olin Corporation

427 N. Shamrock

East Alton, IL 62024 STATEMENT OF THE ISSUE

Whether Respondent, Olin Corporation (Olin) discharged Petitioner in retaliation for Petitioner's filing of a previous charge against Respondent with the Florida Commission on Human Relations (Commission).

PRELIMINARY STATEMENT

This cause had its inception when John Lockhart, the Petitioner, was discharged August 15, 1989, for sleeping on the job in violation of Respondent's plant rules. Thereafter, Petitioner filed a charge in which he alleged he was discharged in retaliation for previously filing two complaints of discrimination against Respondent.

At the hearing, Petitioner testified on his own behalf and additionally presented the testimony of Lynn Black, Clyde Williams, Ernie Proctor, Donald Greene, Ken Balchuk, Annie Norton, and Nathan Thomas. Petitioner's Exhibits 1 through 5 were received into evidence.

Respondent presented the testimony of Lloyd Wright and Bruce Longman.

Respondent's Exhibits 1 through 10 were received into evidence.

A transcript of the hearing was filed with the Division of Administrative Hearings on July 25, 1990. The parties initially were granted 15 days from the filing of the transcript to file their respective posthearing Proposed Findings of Fact and Conclusions of Law pursuant to Rule 22I-6.031, Florida Administrative Code, with the understanding that the submission of the Recommended Order may extend beyond the thirty days provided by Rule 28-5.402, Florida Administrative Code, and in that regard the rule was waived. On August 6, 1990 an order was entered extending to August 21, 1990, the time for filing posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each Proposed Finding of Fact have been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Olin Corporation has an explosives manufacturing plant at St. Marks, Florida, known as Olin St. Marks Operations, employing 425-500 employees and is an "employer" as that term is defined in Section 760.02(6), Florida Statutes.

   
   

2. Production and maintenance employees are represented by the United Steelworkers of America, AFL-CIO-CLC Local 8018 (Union). At all times material to this case there was in effect a collective bargaining agreement (Agreement) between Respondent and the Union.

   
   

   The Agreement contains provisions which:

   
   

   - reserves to management the right "to make reasonable rules for the maintenance of discipline and protection of life and property and to suspend, discharge, or otherwise discipline employees for cause" (Article 4, Section 4.2, page 3); contain special procedures regarding discharge of employees (Sections 8.5 and 8.6, page 8); set forth hours of work and rates of pay, including overtime pay (Article 14, pp. 19-20; Article 15, pp.

   20-22; Article 16, pp. 22-23); provides for

   a one-half hour unpaid lunch period (Article 14, Section 14.2, p. 19).

   
   

3. a. The Petitioner, John W. Lockhart, Jr., a Warehouse Helper, was initially employed by Olin on April 8, 1976 and discharged by Respondent August 15, 1989.

   1. His hourly rate of pay at the time of his discharge was $8.94.

      
      

   2. During times material to this case, Petitioner was regularly assigned to work the day shift - 8:00 a.m. to 4:30 p.m.

      
      

   3. The warehouse normally operates on day shift only.

      
      

   4. A production supervisor is present on all shifts and is responsible for the warehouse on shifts other than the day shift.

4. At all times material to this case, Lynn E. Black was Personnel Supervisor for Olin's St. Marks plant. She held the position for 10 to 12 years. Black conducted the hearing and investigation which resulted in Petitioner's discharge, and prepared the letter notifying him of his discharge.

   
   

5. Bruce C. Longman was, at all times material to this case, Manager of Administration at Olin's St. Marks plant. He has 19 years' experience with Olin and 24 years' experience in total in the field of human resources and labor relations. Longman participated in Petitioner's pre-discharge hearing and prepared the answer to the grievance filed on Petitioner's behalf.

   
   

6. a. At all times material to this matter, Respondent had in effect Plant Rules which are divided into three categories, with Category 1 being the most serious in that violations of Category 1 rules subject an employee to termination for a single offense. Sleeping is a Category 1 offense.

   
   

   1. The rules are widely publicized.

   2. The sleeping rule has been in effect since 1969.

   
   

7. Company guidelines are utilized in administration of the sleeping rule. Factors considered, inter alia, include whether the employee is in his work area, if he made a bed, if he had a pillow, if he was difficult to awaken, if the area was lighted, whether the employee is sitting up or lying down, and his or her intent. Mitigating factors considered include proven illness and excessive recent overtime.

   
   

8. On Wednesday July 26, 1989, Petitioner's supervisor advised him that certain work had to be completed prior to the beginning of the day shift on July 27,1989 and further advised that Petitioner could perform the work on overtime at his discretion. The work was expected to take two hours to complete. Petitioner returned to the plant at midnight and performed the work.

   
   

9. Petitioner received pay at 1.5 times his base rate or $13.41 per hour for the hours in the plant after midnight.

   
   

10. At approximately 3:30 a.m. on July 27, 1989 Petitioner proceeded to a secluded area of the warehouse and slept until about 5:40 a.m., when he was awakened by two supervisors and a Fire/Security Technician.

    
    

11. Petitioner slept on a pile of flattened cardboard boxes, with a pillow made of foam rubber wrapped in rags. His feet were propped on two fiber packs. His shoes were off and his safety clothing removed from his upper body. His eyes were shut and he was snoring.

    
    

12. Petitioner was suspended pending a hearing in accordance with the Agreement which was held on July 28, 1989.

    
    

13. Petitioner was aware (a) of the rules against sleeping, Rule I-4; (b) that the maximum penalty for deliberate sleeping was termination, absent mitigating circumstances; and, (c) the company's enforcement of the rule as a result of his participation three months earlier in the investigation of two "sleeping cases" which culminated in the employees being discharged.

    
    

14. Petitioner intentionally slept on the job and stated that he would do so again under the same circumstances. Petitioner believes that any employee should be allowed to sleep on the job when that employee's work is finished.

15. Petitioner consulted a sleep disorder center in early June 1990, approximately ten months after his discharge, that issued a report on June 15, 1990 diagnosing his condition as "severe obstructive sleep apnea" that resulted in "profound excessive daytime sleepiness". However, there was no evidence of Petitioner having a problem with sleepiness at any time while on the job other than this occasion.

    
    

16. When Petitioner became sleepy he did not seek any medical assistance, which was available to him at the time, or any other assistance, nor did he "clock-out" and go home. Instead, he "made a bed" and intentionally went to sleep and continued to draw pay at the overtime rate.

    
    

17. There was insufficient evidence to show that there were any mitigating factors to lessen the penalty of termination in this case.

    
    

18. Since there were no mitigating circumstance to lessen the penalty for violation of Rule I-4, sleeping on the job, in this case, Petitioner's employment with Olin was terminated on August 15, 1989

    
    

19. Although sleeping is allowed on break periods and during lunch, Olin does not condone sleeping on the job. There was insufficient evidence to show that employees were confused in regard to when and where sleeping was allowed.

    
    

20. The rule against sleeping on the job has been uniformly applied in that employees who violate the rule are terminated unless there are mitigating circumstances such as in the Annie Norton case. There was insufficient evidence to show that employees were confused in regard to the application of the sleeping rule.

    
    

21. Petitioner filed a previous charge of discrimination against Olin with the Commission (Charge No. 89-4102) which was resolved by settlement agreement and dismissed by the Commission. Petitioner alleged that he had filed one other previous charge of discrimination against Olin with the Commission but no evidence was adduced regarding this charge.

    
    

22. There was insufficient evidence to show that Petitioner or any other employee of Olin suffered any retaliation for filing discrimination charges against Olin with the Commission.

    
    

23. There was insufficient evidence to show that Petitioner's discharge was in retaliation for filing previous discrimination charges against Olin with the Commission or that there was any causal connection between the Petitioner's filing of previous charges of discrimination against Olin with the Commission and his discharge or for any of his union activities in investigating grievances or complaints.

    
    

24. Petitioner received no discipline between the filing of the previous charge (Charge No. 89-4102) with the Commission and his discharge on August 15, 1989.

    
    

25. Olin's no sleeping rule is reasonably related to the operation of its business, is common to all Olin plants, and is common throughout the industry.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

27. Section 760.10(7), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against any person because that person made a charge under Section 760.10, Florida Statutes.

    
    

28. Respondent is an employer as that term is defined in Section 760.02 (6), Florida Statutes.

    
    

29. There was no direct evidence that Petitioner's discharge was in retaliation for previously filing a charge of discrimination with the Florida Commission on Human Rights against Olin nor is there any evidence that he was discharged because of his race. In fact, Petitioner testified that he believed he was discharged because of his union-related activities at the St. Marks facility, an issue which is outside the scope and jurisdiction of Section

    760.01-760.10, Florida Statutes, Florida's Human Rights Act of 1977.

    
    

30. To prove a prima facie case of retaliation, in the absence of direct evidence of discrimination, Petitioner must establish (1) there was a statutorily protected participation; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action. Using this test, Petitioner must prove he opposed an unlawful employment practice which he reasonably believed occurred. Unlawful employment practices are defined in Section 760.10, Florida Statutes, as those practices which discriminate on the basis of race, color, religion, sex, national origin, age, handicap, or marital status. Petitioner then must prove he was the subject of an adverse employment action. And finally, he must prove the two are connected Bigge v. Albertsons Inc., 894 F.2d 1497 (11th Cir. 1990) and the cases cited therein.

    
    

31. At the hearing, contrary to his allegations in the Petition For Relief filed with the Commission, Petitioner alleged that he was discharged because of his union-related activities. Thus, his testimony does not support the first element of establishing a prima facie case, i.e., that he participated in an activity protected by Florida's Human Rights Act of 1977.

    
    

32. Assuming arguendo that, contrary to Petitioner's allegations, the protected activity is found to be the filing of an earlier charge with the Commission. If so, then Petitioner failed to establish part 3 of the prima facie case in that he did not show a causal connection between the filing of the earlier charge and his discharge.

    
    

33. Respondent articulated a legitimate, non-discriminatory, non- retaliatory reason for Petitioner's discharge. Moreover, Respondent met its burden of persuasion by pointing out its rules and guidelines which Petitioner admittedly violated. Bigge v. Albertson's Inc., Id.

    
    

34. Florida's Human Rights Act of 1977 does not take away the employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules, as long as the reason for its action is not a discriminatory one. The sole relevant question is simply whether the given reason was a pretext for illegal discrimination. Nix v. WLCY Radio, 738 F.2d 1181 (11th Cir. 1984).

35. Respondent's Rule I-4, sleeping rule, is reasonably related to the safe, efficient and orderly operation of its business. It manufactures, packages, stores and ships explosive gun powder and it is therefore necessary for the safety of the employees that they be alert and attentive while in the plant confines.

    
    

36. Petitioner presented no evidence to support the allegations of his petition that he was discharged in retaliation for previously filing a discrimination charge with the Commission.

    
    

37. Petitioner did not dispute any relevant facts upon which Respondent based its decision to terminate him. He not only admitted deliberately sleeping for more than two hours, but believed he had a right to sleep and to be paid for it.

RECOMMENDATION

Based upon the foregoing Findings of Fact, the Conclusion of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order denying relief to the Petitioner, John Lockhart, and dismissing the Petition for Relief.

DONE and ORDERED this 15th day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1990.

APPENDIX TO RECOMMEDED ORDER

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

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. - 3. Adopted in Finding of Fact 1, 3, and 4 respectively.

4. - 7. Restatement of testimony and not a finding of fact but see Findings of Fact 13, 14 and 20.

1. Restatement of testimony and not a finding of fact, however, not material.

2. Adopted in Findings of Fact 13 and 17.

3. Restatement of testimony and not a finding of fact but see Finding of Fact 19.

4. - 12. Rejected as not being supported by substantial competent evidence in the record.

1. Adopted in Finding of Fact 17.

2. Restatement of testimony and not a finding of fact see Findings of Fact 22 and 23.

3. Not material.

4. Adopted in Finding of Fact 15.

5. Not material.

6. Adopted in Findings of Fact 8.

7. Restatement of testimony and not a finding of fact but see Finding of Fact 7.

Specific Rulings of Proposed Findings of Fact Submitted by Respondent

respectively.

1. Not material.

2. - 42. Adopted in Findings of Fact 24 and 25, respectively.

COPIES FURNISHED:

Curley R. Doltie, Esquire

118 North Gadsden Street Post Office Box 1325 Tallahassee, FL 32302

Dorothy J. Kelley, Esquire Labor and Employment law Olin Corporation

427 N. Shamrock

East Alton, IL 62024

Dana Baird, Acting Director Florida Commission on Human

Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-001223

Orders for Case No: 90-001223