STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID FAISON, )

)

Petitioner, )

and )

)

EMMA HAWKINS, )

) CASE NO. 90-6595

Intervenor, )

)

vs. )

) FLORIDA LEISURE ACQUISITION CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ocala, Florida, before Robert T. Benton, II, of the Division of Administrative Hearings, on November 20, 1991. The Division of Administrative Hearings received the hearing transcript on December 12, 1991, and the parties filed proposed findings of fact on or before December 30, 1991. The attached appendix addresses proposed findings of fact by number. Post-hearing filings concluded with Mr. Levy's letter of May 21, 1992, filed on May 26, 1992.

APPEARANCES

For Petitioner Mary C. O'Rourke and Intervenor: P. Kent Spriggs

Spriggs and Johnson

324 West College Avenue Tallahassee, Florida 32301

For Respondent: Loren E. Levy

Bruce R. Kaster

Cove, Green and Kaster Post Office Box 2720 Ocala, Florida 32678

and

Lewis E. Shelley

117 South Gadsden Street Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether respondent discriminated against petitioner on account of his race in terminating his employment as a glass bottom boat captain at Silver Springs? Whether Emma Hawkins should be allowed to intervene? If so, whether respondent discriminated against intervenor on account of her race in failing to promote and ultimately in discharging her?

PRELIMINARY STATEMENT

After petitioner filed a complaint with the Florida Commission on Human Relations (FCHR) alleging race discrimination in respondent Florida Leisure Acquisition Corporation's (FLAC's) termination of his employment, FCHR investigated. In the course of the investigation, FCHR obtained and considered an affidavit executed by Virginia R. Phillips, which included the allegation that, on account of her race, "Emma Hawkins in Food & Beverage was never given a chance for promotion." (Emphasis omitted.)

FCHR's investigation eventuated in its "DETERMINATION: NO CAUSE" dated September 14, 1990. On October 12, 1990, petitioner filed a form petition for relief from an unlawful employment practice with FCHR, pursuant to Rule 22T-

1. [now 60Y-5.008], Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985). The petition alleges:

   
   

   Florida Leisure Acquisition Corporation, since the purchase of Silver Springs has beyond any doubts discriminated against black

   employees. . . . Blacks were not afforded the same opportunities as white employees for promotions, salaries and other opportunities.

   
   

   FCHR transmitted the petition to the Division of Administrative Hearings for a de novo determination of the merits of petitioner's allegations, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991) and Rule 22T-9.8016(1) [now 60Y-5.8016(1)], Florida Administrative Code.

   
   

   On August 15, 1991, Emma Hawkins filed with the clerk of the Division of Administrative Hearings a petition to intervene. Assuming the petition was unopposed, the Hearing Officer entered an order granting the petition on November 15, 1991. At final hearing, when respondent's counsel advised that he had never obtained a copy of the petition (although he had been aware of its existence, apparently since August, T.7), the question of intervention was reopened. T.9. A second petition to intervene, filed by Alphonso Sears, was reconsidered and denied at hearing. T.323.

   
   

   FINDINGS OF FACT

   
   

   1. On January 1, 1989, FLAC acquired Silver Springs and Wild Waters, an adjacent tourist attraction dating to 1977 or 1978. In or near Ocala, Florida, both properties had belonged to Florida Leisure Acquisitions, Inc., who had acquired them from American Broadcasting Company some five years earlier, in a "leveraged buyout." FLAC also acquired Weeki Wachee in 1989. T.449. Thomas Cavanaugh, who started as a vice-president and general manager in 1973, survived both changes in ownership, and had effective control over a unified personnel system until his departure in 1990.

      
      

   2. As late as 1973, everybody who worked at Silver Springs as a glass bottom boat captain was black. When FLAC acquired Silver Springs, five of twelve glass bottom boat captains were black. At the time of petitioner's discharge on June 21, 1989, seven of the boat captains were black. The number had fallen to three by November of 1990.

      Hiring Patterns

      
      

   3. Most of the jobs at Silver Springs require little or no skill, and this has been true at all pertinent times. Boat captains needed only to be able to deliver a spiel or learn a script and handle a boat. Maintenance and food service positions were predominantly unskilled. In all these areas, there were also some positions for managers or supervisors.

      
      

   4. Between December 7, 1987, and May 6, 1991, inclusive, respondent or its predecessor hired 104 boat captains or guides, and offered jobs as boat captains or guides to 20 others who did not accept. None of those who refused offers and only one who accepted was black. Nine of 520 persons who applied for these positions during this time period were black.

      
      

   5. In late 1989 and early 1990, blacks applying for other positions at Silver Springs comprised a significantly higher proportion of the applicants for these other positions. In the early part of 1990, blacks accounted for 6.95 percent of applicants for all jobs at Silver Springs, up from the latter part of the year before.

      
      

   6. Treating the population between 15 and 64 as a proxy for the civilian labor force, the civilian labor force in the area was, according to 1980 census data, 14.7 percent black, a percentage that had fallen by 1990 to 12.7 percent. Blacks comprised 11.1 percent of the Marion County population 15 and older in 1990, and 16.8 percent of those who found work through the Florida State Employment Service in the period from July of 1990 through June of 1991.

      
      

   7. A labor economist called by petitioner testified that the discrepancy between the percentage of blacks in the flow of applicants for work as boat captains or guides and the percentage of blacks in the work force in Marion County permitted an inference "that there is . . . probably some barrier to entry for individuals to apply," Fresen Deposition, p. 21, for those positions.

      
      

   8. The same witness was also willing to speculate, id. at 54, that the discrepancy between the percentage of blacks in the flow of applicants for boat captain or guide positions and the percentage of blacks in the flow of applicants for other positions at Silver Springs "may be . . . [attributable to t]he channelling of applicants for navigational positions into other positions." Id. at 55.

      
      

   9. Respondent attributed the conceded decline in black applicants for work at Silver Springs to better opportunities increasingly available elsewhere in Marion County, including positions at a Martin-Marietta plant with 1800 employees, at Certified Grocers with 800 employees, at Energy One and at Federal Motors, each with 1100 employees in the community, and at a K-Mart Distribution Center with two or three hundred employees. T.440-1.

      
      

      Glass Bottom Boats

      
      

   10. For several years, perhaps since 1957, U.S. Coast Guard regulations have required that passengers on glass bottom boats at Silver Springs be told about life jackets on board, and boat captains have been responsible for doing this, before setting out. Otherwise, until a few years ago, each glass bottom boat captain had broad discretion about what he did or did not say to passengers on board.

   11. On July 1, 1957, when petitioner David Faison, who is black, began work for one of respondent's predecessors in interest as a glass bottom boat captain (or driver), each captain was required to compose a talk to deliver to glass bottom boat passengers. As a new recruit, Mr. Faison read the book "Eternal Springs" and rode with other captains, before leading his own boat tours, pointing out flora and fauna and sharing information about the springs.

       
       

       An Easter Outing

       
       

   12. Jim Schorr, then FLAC's new chief executive officer, took his family for their first ride on a glass bottom boat at Silver Springs on Easter Day 1989. They "went down on the glass bottom boat dock, and they took the first boat that was available and that happened to be Riley Williams' boat." T.526.

       
       

   13. Afterwards Thomas Cavanaugh summoned Riley Williams, a black boat captain with more than 30 years' experience, and Michael Jacobs, respondent's director of operations, to his office. "Riley, what happened? What happened with your trip, Riley?" he asked. "We just talked to Jim Schorr. He said it was a terrible trip." T.526.

       
       

   14. Surprised and visibly shaken, Mr. Williams reported that "Mr. Schorr even told me my trip was good," (T.527) but allowed that he had been nervous. Mr. Cavanaugh told him to take the afternoon off and said, "Riley, we're going to go ahead - we're going to help all the drivers. We're going to hire a drama coach, and it will help everybody out." Id.

       
       

       Standardization

       
       

   15. David London, the new drama coach, prepared the first version of a script the boat captains were asked to commit to memory, or at least to follow closely as a guide when giving tours. As requested, petitioner, along with other boat captains, made suggestions for improving the script. T.251, 521.

       
       

   16. At a meeting on or after May 2, 1989, a revised script was distributed to assembled boat captains, and Mr. Schorr announced "that he wanted them to learn the script, and if they chose not to learn the script, that they could find work elsewhere." T.484. No deadline was given. T.44, 429. Whether petitioner Faison was in attendance is unclear. T.294.

       
       

   17. Riley Williams now works on the grounds at Silver Springs, landscaping and gardening. His pay is no less than if he had remained a boat captain. He asked for a transfer because he felt he "really wasn't coming up to par of what they wanted . . . [from boat captains] and the time was closing in "

       T. 581.

       
       

       Dockmaster

       
       

   18. A black man, Willie Barr began as a glass bottom boat captain at Silver Springs in 1974. Except for a hiatus that began in 1980 and ended in 1981, he continued in respondent's employ (or that of a predecessor in interest) until November 18, 1989, when he retired as dockmaster, a salaried position he first assumed in 1982.

       
       

   19. As dockmaster, Mr. Barr reported directly to Mike Jacobs, the white man who worked as respondent's director of operations. Mr. Barr had overall responsibility for both jungle cruise and glass bottom boats; and particular

       responsibility for scheduling glass bottom boat captains' work and for maintenance of the glass bottom boats. A separate maintenance department actually did the work. He also piloted, loaded, unloaded and tied up glass bottom boats.

       
       

   20. Mr. Barr retired at age 52 at least partly because of high blood pressure, a malady of which both he and Mr. Jacobs had become aware in early 1989. T.299, 481. During the months before he stepped down, Mr. Barr came to Mr. Jacobs on several occasions, and told him "about the stress he was under at the boat dock, the problems he was having with the drivers, a new company taking over and all the changes that were taking place." T.481.

       
       

   21. In May of 1989, Mr. Jacobs asked Mr. Utz, a decorated Navy veteran who had worked at Silver Springs longer than Mr. Barr, "to give Willie a hand." T.371, 481-2. At the time of this request, Mr. Utz, who is white, was "at the jungle cruise most of the time running the jungle cruise operation," (T.298) as lead or "manager of the jungle cruise." T.368. Mr. Barr viewed Mr. Utz, before May of 1989, as his assistant, as did every glass bottom boat captain who testified on this point.

       
       

   22. But management witnesses insisted that Mr. Utz's position "at the jungle cruise" was equal in rank to that of glass bottom boat dockmaster, the position Mr. Barr held. T.472. Although Mr. Utz worked for an hourly wage before (and, initially, after) the change in May of 1989, Mr. Utz's remuneration exceeded Mr. Barr's salary significantly. In addition to supervising jungle cruises, Mr. Utz trained boat captain recruits.

       
       

   23. Respondent gave Mr. Utz no pay raise in May of 1989, when his broader responsibilities seemed to most to entail greater authority. The company's chief executive officer acknowledged that a change in the pecking order occurred. T.455. Mr. Barr began reporting to Mr. Utz in May of 1989. T.275. On May 7, 1989, Mike Sentman took over as lead for jungle cruise operations. Response to Petitioner's First Set of Interrogatories, No. 16. Glass bottom boat drivers considered Mr. Barr their supervisor before, but not after, the time Mr. Utz undertook his new role in glass bottom boat operations. T.42, 53- 4, 57.

       
       

   24. Ultimately Mr. Utz assumed a new title, supervisor of boat operations (T.295, 372), and filled a newly created position, which respondent never advertised, even to other employees. He continued to train all new boat captains before they took a test the U.S. Coast Guard required, drawing on his long experience with boat handling. Only in January of 1990, after Mr. Barr had retired, however, did Mr. Utz acquire his present title and become a salaried employee. T.372.

       
       

       We Are Not "Edutained"

       
       

   25. On Tuesday, June 20, 1989, the day David Faison returned from a two- week vacation, David London rode on his boat and listened to what petitioner said to the tourists. Unfavorably impressed, he told Donald Utz afterwards, "Wow, that was terrible. That was the wors[t] yet." T.378.

       
       

   26. That afternoon Donald Utz and Michael Jacobs sent Robert Sinkler, Jr., at the time employed in respondent's "Edutainment" program, on a boat ride with petitioner, with instructions to videotape petitioner's performance. Virtually without interruption, petitioner (who mistook Mr. Sinkler for a tourist) was videotaped for the duration of the trip.

   27. Received in evidence as Respondent's Exhibit No. 1, the videotape records petitioner's remarks, delivered in a sometimes unintelligible singsong. They bear scant resemblance to the prescribed script, and include no reference to life jackets. On other occasions, however, petitioner did advise passengers of the life preservers on board. T. 278.

       
       

   28. David Faison was asked the next day to join Messrs. Jacobs and Utz, in viewing at least a portion of the videotape. In the discussion that followed, petitioner, who was said to be good-natured ordinarily, expressed resentment at having to use the script, which Mr. Jacobs took as a refusal to do so. Petitioner is "a person that would tell you what he thought." T.451. He terminated petitioner's employment on the spot, although Mr. Faison was generally seen by his superiors in the organization as not the type of person to be insubordinate. T.450-451.

       
       

   29. The day Mr. Faison was discharged Willie Barr, the dockmaster, asked to see the videotape, after he learned from other boat captains that petitioner had been sent home. Mr. Barr watched part of it in the company of Don Utz, who told Mr. Barr that petitioner had been discharged for failure to use the assigned script. T.295. Mr. Utz "didn't really indicate that" (T.295) respondent had refused to use the script.

       
       

   30. Before petitioner's discharge, Mr. Utz had told Virginia Phillips that he did not know how the black boat captains were going to do because they were difficult to understand. T.51. He also told her he did not want her going to "that area of the city," (T.47) which she took to mean the black residential area. She had recently travelled there when she drove a black boat captain, Alphonso Sears, home.

       
       

   31. Insubordination was (and remains) a recognized ground for dismissal. T.293, 303. But a white glass bottom boat captain was not dismissed despite refusing to be "cross-trained" as a boat captain for two of the three other rides offered by FLAC, even though he had originally been told that "cross training" for all three was mandatory. T.108. The white employee did train as a boat captain for one of the three other rides. He was told, three weeks before the hearing, that training for the other two was not required. T.109.

       
       

   32. Another boat driver, Virginia Ferguson, testified that she "was told recently all boat drivers needed to be cross-trained" (T.175) to act as guides on all four rides. T. 176. A second white boat driver also refused cross- training with impunity. T.420. But nobody else was shown to have insisted on giving the glass bottom boat tour his own way, without using the prescribed script. Respondent's newly installed chief executive officer had personally decided and publicly announced that all glass bottom drivers were to use the script.

       
       

       Recruitment Efforts

       
       

   33. Four times petitioner tried unsuccessfully to get in to see Mr. Cavanaugh in an effort to regain the job he had held for more than three decades. At hearing, Mr. Cavanaugh characterized his failure to talk to petitioner about his discharge as an "error" (T.452) that he attributed to the emotional drain of having himself to terminate the employment of so many people he had worked with for a long time. David Faison was one of approximately twenty employees FLAC discharged in 1989, most of whom were managers. "The new management was making a sweep." T.449.

   34. Like his brother David, Roosevelt Faison has worked as a boat captain at Silver Springs for many years. He began on May 4, 1956, and worked full-time until 1989, when he chose to cut back to two days a week. An average or above average employee (T.276), his evaluations have been consistently "good" or "excellent."

       
       

   35. In May of 1989, he told Anne Dansby, a white woman who worked for respondent that "the few blacks . . . [still employed] felt like they w[ere] not really wanted in the park." T.125. She apparently relayed the substance of this conversation to Tom Cavanaugh, who later brought up the subject with Mr. Roosevelt Faison, agreeing that the number of black employees had dropped. Mr. Cavanaugh told Mr. Roosevelt Faison that he "was dead on the money, but it wasn't done intentionally." T.126.36. On the third or fourth day after his arrival at Silver Springs, Thomas Cavanaugh ordered an end to racially segregated bathrooms at Silver Springs. He personally included a sledge hammer in an attack on a urinal reserved, until its destruction, for the use of black men. Within months of his arrival, he "retired" the white supervisor of glass bottom boats and replaced him with a long-time black employee. He sought to recruit black employees through the school system and enlisting the assistance of black community leaders. These efforts antedated his discussion of the situation with Roosevelt Faison, and intensified after their discussion.

Lay-Off

1. On a Monday in July of 1989, when Mr. Roosevelt Faison reported to work, he found a note with his paycheck, which said, "Roosevelt, you are off until notified to come back to work." T.127. When he spoke to Ms. Dansby about the note, she called Mike Jacobs, but he was reportedly too busy to talk to Mr. Roosevelt. Ms. Dansby then called Mr. Utz, who did speak to Mr. Roosevelt Faison, first telling him, "It's just slow business, and we're just cutting back," (T.129) then referring him to Willie Barr, who was not at work that day.

   
   

2. The next day, when Roosevelt Faison spoke to Mr. Barr by telephone, Mr. Barr rescinded the lay-off. Although he had not recommended the lay-off, (T.277) Mr. Barr had written the note to Mr. Faison ("on Roosevelt's time card" T.305) at Mr. Utz's behest. T.307. Mr. Roosevelt Faison did not work that week, but he was paid for a half day (presumably because he had come in Monday.) He resumed working his wonted Mondays and Tuesdays the following week.

   
   

   McCants

   
   

3. Charlie McCants, who is black, went to work for respondent or a predecessor in interest in 1959 in the deer park, feeding and otherwise taking care of the animals there. He also mended fences and did other maintenance, until his transfer in 1985 to the wildlife section of the attraction. There he did much the same thing, although for different animals, among them giraffes, to whom he had to give shots.

   
   

4. He was paid the same thing in the wildlife section as he was making in the deer park before the transfer, although he never supervised anybody in the wildlife section, as he once did for a while in the deer park, without actually holding a supervisor's position. He and Bill White, who is white, were relocated at the same time. Management felt they had both become too often hard to find in the deer park.

   Emma Hawkins

   
   

5. Emma Hawkins began work at Silver Springs in the food and beverage department in May of 1974. In September of 1976, she resigned to go to junior college, but she returned to her job in November of 1977, and was promoted the following month to lead. She was promoted a second time -- to unit coordinator

   -- in March of 1979, and a third time -- to supervisor -- in August of the same year. She viewed her transfer in February of 1990 to the food and beverage department at Wild Waters as a fourth promotion. T.185, 198.

   
   

6. She did not, however, receive every promotion for which she applied. She was passed over in favor of another black person for a job "managing the warehouse," (T.188, 489) and lost out, again to another black applicant, when she applied for an administrative position in the front office. T.188, 489. In January of 1989, she received the last in a series of merit pay raises.

   
   

7. More than once, she applied unsuccessfully to become assistant manager of the food and beverage department. The last time she applied to be assistant manager of the food and beverage was the spring of 1989. T.188. The position remained open until Shari Wynkoop, a white woman who had not previously worked at Silver Springs, began as assistant manager of the food and beverage department on June 28, 1990. T.479.

   
   

8. At the time of her transfer to Wild Waters, Ms. Hawkins had charge of a restaurant at Silver Springs, The Outback, where she supervised some 20 employees, more in the summertime. T.299-301. At Wild Waters, she had responsibility for five food facilities and up to 50 employees. Id. She had "charge of hiring, firing, inventory purchasing, schedules, supervising, cooking, [and] cash control." T.186. At least after the transfer, many of the assistant manager's duties devolved on Ms. Hawkins, until Ms. Wynkoop took over.

   
   

9. A few months before the transfer, Robert Santillana, the food and beverage director, had given Ms. Hawkins a written reprimand because Tina Balboni, whom she supervised, had been permitted to work with "NO HAT, SCARF OR NAME TAG." Petitioner's Exhibit No. 8. On a "CAST MEMBER COUNSELING FORM," Mr. Santillana warned that another such dereliction would result in further counseling. Id.

   
   

   Money Bags

   
   

10. The Wild Waters operations manager's morning routine included a trip from Silver Springs to Wild Waters with locked bags full of cash for the various Wild Waters cash registers. He put the money bags needed for the operations Ms. Hawkins supervised in a milk crate in his office. She usually took the crate herself from there to her office in the back of the Surf's Up restaurant, before distributing the money to cashiers.

    
    

11. Ms. Hawkins had a door lock installed -- there was none when she started at Wild Waters -- but she did not always lock her office door. An electronic timing device for one of the water slides at Wild Waters was located in her office, and the operations manager needed access to reset the timer. She spent a certain amount of time out of her office but in close proximity.

12. Ms. Hawkins was told on her return (after two days off) to work on or about August 10, 1990, that $98.16 had not been accounted for on or about the evening of August 8, 1990, and that a cashier had quit the day after the loss was discovered. She relayed this information to Mr. Santillana, who did not seem particularly concerned at the time.

    
    

13. But Mr. Santillana gave her a written reprimand when, sometime within a few days of August 8, 1990, approximately $400 was taken from an unlocked money bag a cashier left in her unlocked office, in violation of prescribed procedure and apparently without Ms. Hawkins' knowledge. This loss occurred on a Friday. Mr. Santillana, who did not learn of it until the following Monday, was angry that Ms. Hawkins had not succeeded in reaching him over the weekend. She had standing instructions to report major losses to him as soon as possible.

    
    

14. On August 16, 1990, he and Ms. Wynkoop went to Ms. Hawkins' office and found it unlocked. Nobody was in the office, but a milk crate full of money bags was in plain sight. He went straight to the front of the restaurant and asked Ms. Hawkins to come to his office the following day. Later he wrote a memorandum, memorializing his findings on August 16, 1990, recounting the loss a week or so before of $98.16, and terminating her employment. August 16, 1990, was the last day Ms. Hawkins' worked for respondent.

    
    

15. Ms. Hawkins was not the first to lose a job with respondent for (apparent) failure to abide by prescribed cash handling procedures. On occasion employees were discharged for a single (apparent) breach of such procedures.

    Ms. Hawkins (who had not yet clocked in when Mr. Santillana accosted her on the morning of August 16, 1990) noticed that a trusted employee had a good view of her office door, but did not bother to check whether it was locked, before going to help elsewhere in the facility, where she was needed.

    
    

    CONCLUSIONS OF LAW

    
    

16. Since FCHR referred petitioner's hearing request to the Division of Administrative Hearings, in accordance with Rule 22I-9.8016(1), Florida Administrative Code, and Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

17. The Florida Human Rights Act of 1977 applies to any act of discrimination occurring during the times pertinent here. 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, and any agent of such a person," Section 760.02(6), Florida Statutes (1991), to discriminate on the basis of race in promoting or discharging employees. FLAC is an "employer" within the meaning of the statute.

    
    

18. Petitioner contends that he has proven a pattern and practice of race discrimination at Silver Springs, and that he has adduced direct evidence of discriminatory intent sufficient to shift the burden to respondent to prove that he would have been fired, even if he were not a black man.

    
    

    A plaintiff may establish a prima facie case in one of at least two ways. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984); see also Burdine, 450 U.S.

    at 2534 n. 6, 101 S.Ct at 1094 n. 6; Furnco

    Construction, 438 U.S. at 576-77, 98 S.Ct. at 2949. He may present direct evidence of discriminatory intent in the form of actions or remarks of the employer reflecting a discriminatory attitude. See Bell v.

    Birmingham Linen Service, 715 F.2d 1552, 1556

    (11th Cir. 1983), cert. denied, 457 U.S. 1204,

    104 S.Ct. 2385, 81 L.Ed.2d 344 (1984); Lee v.

    Russell County Board of Education, 684 F.2d 769, 774 (11th Cir. 1982). Or, in the absence of direct evidence of discrimination, he may rely on the combination factors set forth in McDonnell-Douglas Corp. v. Green and show simply

    (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants;

    (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

    411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). If a plaintiff chooses the direct method, and the evidence is found credible, the burden of persuasion shifts to the employer to prove by a preponderance that it would have made the same decision or engaged in the same conduct in the absence of the discriminatory factor. Bell v. Birmingham Linen Service, 715 F.2d at 1558. If a plaintiff proceeds under the indirect, McDonnell-Douglas formula, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its conduct or decision. McDonnell-Douglas, 411 U.S. at 803, 93 S.Ct. at 1824.

    
    

    Hill v. Metropolitan Atlanta Rapid Transit Authority, 841 F.2d 1533, 1539 (11th Cir. 1988). "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Department of Community Appeals v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.

    
    

19. On the perhaps unwarranted assumption that the burden did shift to respondent to show that David Faison would have been fired "in the absence of the discriminatory factor," respondent carried the burden clearly and convincingly. A new chief executive officer had made careful attention, if not scrupulous adherence, to the revised script a condition of continued employment, and announced the fact publicly. Middle management minions enforced this edict vigorously. Mr. Jacobs reacted predictably, if ruthlessly, to petitioner's resistance, and would undoubtedly have done the same thing to any other boat captain, under similar circumstances, without regard to the particular boat captain's race.

    Intervention

    
    

20. FLAC opposes Emma Hawkins' intervention on several grounds, contending that her claim is time barred, that it is factually dissimilar to petitioner's, and that it relates, at least in part, to events that did not take place within the same time period about which he complains. On the question of intervention, Rule 60Q-2.010, Florida Administrative Code, applies, and state statutory law, construed in light of federal precedents, is also pertinent. Ever since School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance on procedural, as well as substantive, questions in this area. E.g., Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

    
    

21. The Hawkins petition to intervene reached the Division of Administrative Hearings well before final hearing, comfortably meeting the requirement that it "be filed at least five (5) days before the final hearing." Rule 60Q-2.010, Florida Administrative Code. While Ms. Hawkins' failure to serve the petition on all original parties cannot be condoned, counsel for respondent, the only party opposing her intervention, knew of the petition to intervene weeks or months before the final hearing. Respondent should not be permitted to profit from its counsel's struthious reaction to the petition to intervene.

    
    

22. The remaining question under the intervention rule, viz., whether Ms. Hawkins "is entitled to participate in the proceeding as a matter of . . . statutory right," Rule 60Q-2.010, Florida Administrative Code, turns on an interpretation of the Florida Human Relations Act of 1977. The Administrative Procedure Act does not itself confer standing on any party. Agrico Chemical Co.

    v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 1st DCA 1981) rev. den. 415 So. 2d 1359 (Fla. 1982). Although Florida authority on the question is scant or absent, several federal cases address closely analogous issues.

    
    

23. Federal judicial claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et. seq., are foreclosed under 42 U.S.C. Section 2000-5(e) unless they have been the subject of charges timely filed with the Equal Employment Opportunity Commission (EEOC). Title VII requires that any employee invoking the statute's protection file a charge with EEOC within 180 days of the date he or she was discriminated against. 42 U.S.C. Section 2000e 5(e) (1982).

    
    

    The 180 days begins running from the date the employee knows or reasonably should know that he or she has been discriminated against.

    Stafford v. Muscogee County Board of Education, 688 F.2d 1383, 1387 (11th Cir. 1982); McWilliams v. Escambia County School Board, 658 F.2d 326, 328 (5th Cir. Unit B Oct. 1981). The purpose of the requirement is to "put defendants on notice of adverse claims and prevent plaintiffs from sleeping on their rights." Parker v. Crown Cork & Seal Co.,

    462 U.S. 345, 353, 103 S.Ct. 2392,

    2397 76 L.Ed.2d 628 (1983); see also Kilgo v.

    Bowman Transportation Co., 789 F.2d 859, 877

    (11th Cir. 1986).

    Hill v. Metropolitan Atlanta Rapid Transit Authority, 841 F.2d 1533, 1545 (11th Cir. 1988). But the unequivocal statutory requirement to file charges with the EEOC is not a prerequisite to federal court jurisdiction. Zipes v. Trans World Airlines, Inc., 102 S.Ct. 1127 (1982).

    
    

24. The purpose of the Florida statute requiring claimants to file with the FCHR before petitioning for formal administrative proceedings, see Kourtis

    v. Eastern Air Lines, 409 So.2d 139 (Fla. 5th DCA 1982), is likewise to provide their employers an opportunity to rectify any discriminatory wrongs voluntarily without the expense and delay of litigation. As was said regarding EEOC charges, it

    
    

    would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful.

    
    

    Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 498 (5th Cir. 1968). The objective of affording the employer a chance to eliminate discriminatory practices voluntarily is not materially advanced "by requiring each of . . . several p[etitioner]s to file essentially identical charges," Crawford v. United States Steel Corp., 660 F.2d 663, 666 (5th Cir. 1981) or FCHR complaints, so long as the employer is apprised of the nature, time and extent of the claimed discrimination by some employee's filing.

    
    

25. In class actions brought in federal court, there is no requirement that every member of the class have filed EEOC charges within 180 days of the discriminatory conduct complained of. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

    
    

    In dealing with the individual claim of a plaintiff in a class action, Chief Judge Brown emphasized that this was "more than a private claim," that the claimant "takes on the mantel [so in the original] of the sovereign", and that the claim has "extreme importance with heavy overtones of public interest". Jenkins

    v. United Gas Corp., 400 F.2d 28, 32-33, (5th Cir. 1968). In the same opinion it was stated (400 F.2d at 33): "Whether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated."

    
    

    Wheeler v. American Home Products Corp., 582 F.2d 891, -- (5th Cir. 1977) Logically, these considerations are not limited to class actions, and they have in fact been invoked in other procedural contexts.

    
    

26. Cases turning on whether one party's filing should inure to the benefit of another include not only class actions, Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968), but also non-class action cases with multiple, named plaintiffs, Crawford v. United States Steel Corp., supra, and cases like the present one in which intervention is sought only after judicial or formal administrative proceedings are under way. Wheeler v. American Home Products Corp., 582 F.2d 891 (5th Cir. 1977).

27. In "a multiple-plaintiff, non-class action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiff's individual claim, then co- plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982).

    
    

    In cases involving multiple plaintiffs, it is not always necessary that every plaintiff have filed a charge with the EEOC. Under the "single filing rule," plaintiffs who have not themselves filed may rely on the filing of a co-plaintiff if the claims of the filing and non-filing plaintiffs have arisen out of similar discriminatory treatment in the same time frame. Griffin v. Dugger, 823 F.2d 1476, 1492 (11th Cir. 1987) (quoting Jackson v.

    Seaboard Coast Line Railroad, 678 F.2d 992, 1011-12 (11th Cir. 1982); Ezell v. Mobile Housing Board, 709 F.2d 1376, 1381 (11th Cir. 1983). The charge of the filing plaintiff must be timely and otherwise not defective.

    
    

    Hill v. Metropolitan Atlanta Rapid Transit Authority, 841 F.2d 1533, 1545 (11th Cir. 1988). The reason for extending the rule from class members to intervenors has been explained in these words:

    
    

    If back pay may properly be awarded in a class action to members of the class who do not meet the jurisdictional requisites, there seems no reason, in an action not a class action, to deny back pay to intervenors who do not meet the jurisdictional requisites. The same policy is the guide in both instances, a policy that back pay should be awarded as part of the Congressional purpose to eliminate "a historic evil of national proportions", Albemarle Paper Co. v. Moody, above cited at

    95 S.Ct. at 2371. The same opinion declares that it would frustrate the Congressional purpose expressed in Title VII if there were a rule which produced different results for discriminatory practices in situations governed by the same policy.

    
    

    Wheeler v. American Home Products Comp., 582 F.2d 891, -- 5th Cir. 1977) By analogy to the federal scheme, if one petitioner has filed a timely complaint alleging "similar discriminatory treatment," see Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981); Allen v. Amalgamated Transit Union Local 788, 544 F.2d 876 (8th Cir.) cert. den. 434 U.S. 891 (1977), co-employees similarly situated should presumably be permitted to intervene in formal administrative proceedings like these to pursue discrimination claims, without first having themselves filed complaints regarding their claims with the FCHR within 180 days of the discriminatory act complained of.

28. In a slightly different context, a panel of the old Fifth Circuit discussed the relationship between the complaint or charge filed with the agency, the agency's investigation, and the permissible scope of subsequent litigation.

    
    

    In King v. Georgia Power Co., N.D. Ga. 1968,

    295 F.Supp. 943, Judge Smith held that the allegations in a judicial complaint filed pursuant to Title VII "may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission."

    295 F.Supp. at 947. In other words, the "scope" of the judicial complaint is limited to the "scope" of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.

    The logic of this rule is inherent in the statutory scheme of Title VII. A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination [analogous to the FCHR complaint here] is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the Commission carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance with

    the law will the matter ever become the subject of court action. Thus it is obvious that the civil action [analogous to the formal administrative proceeding here] is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation.

    Within this statutory scheme, it is only logical to limit the permissible scope of the civil action to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.

    A more exacting rule would be destructive of the logic of the statutory scheme, for it would impede the ability of the Commission to effect voluntary compliance.

    A less exacting rule would also circumvent the statutory scheme, since Title VII clearly contemplates that no issue will be the subject of a civil action until the EEOC has first had the opportunity to attempt to obtain voluntary compliance. As Judge Smith wrote in King. "This rule, broadly speaking, in effect limits the civil action to that range of issues that would have been the subject matter of the conciliation efforts between [the] EEOC and the employer. If the civil action were not so

    limited, then the primary emphasis of [Title VII] would be circumvented, i.e., an emphasis upon voluntary settlement of all issues without an action in the District Court." 295 F.Supp. at 947.

    Thus we agree with Judge Smith that our holding with respect to the permissible scope of a Title VII judicial complaint "is based on the inherent logic of the stated rule within the statutory scheme." Id.

    
    

    Sanchez v. Standard Brands, Inc. 431 F.2d 455, 466-467 (5th Cir. 1970). Whether this analysis applies with equal force here is problematic.

    
    

    The Supreme Court has elaborated on this "like or related to" test: "Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." General Telephone Co. v.

    EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 1706 64 L.Ed.2d 319 (1980).

    
    

    Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1565 (11th Cir. 1988). Allegations regarding Emma Hawkins' promotional opportunities came to light in the course of the FCHR investigation of petitioner's original complaint, but the FCHR did not actively investigate the Hawkins' non-promotion allegations, or make them the subject of conciliation efforts. Her termination took place only after the FCHR investigation had concluded.

    
    

29. It is presumably true of the FCHR, no less than of the EEOC, that it "need not confine itself to the particular symptom of discrimination identified by a charge if a reasonable investigation of that charge uncovers a root source of discrimination responsible for that and other violations of," EEOC v. E.I. Dupont de Nemours Co., 373 F.Supp. 1321, 1336 (D. Del. 1974) aff'd 516 F.2d 1297 (3d Cir. 1975), the law the agency is charged to enforce. Such a situation might well call for a Florida version of the single filing rule. But the investigation in the present case uncovered no "root source of discrimination" nor any other common cause for petitioner's and Ms. Hawkins' separate terminations.

    
    

30. The FCHR's investigation does not afford an adequate basis for Ms. Hawkins to invoke a single filing rule. But the allegations in her petition also have to be examined (at this stage, in light of the evidence) to determine whether they are "like or related" to those in the timely FCHR complaint which preceded the petitioner's petition.

    
    

    Unless a charge alleges practices "like or related to" the practices alleged in the complaint, it cannot serve as the basis for a civil action. See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 455, 466 (5th Cir.

    1970).

    
    

    Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1565 (11th Cir. 1988). The language of petitioner's complaint to the FCHR, not of the much later petition for relief, is the pertinent focus of inquiry. Since the FCHR did not pursue, much less ascertain, a violation against Emma Hawkins, the question is whether her petition to intervene alleges, and evidence establishes, practices "like or related to" those petitioner Faison brought to FCHR's attention, in his timely complaint.

31. The evidence showed that Ms. Hawkins worked in a different job in a different department at a different location, and that the subjective decisions she complained of were made by different supervisors. It is not enough that a co-employee seeking intervention simply allege the same motive for discrimination originally alleged in the timely FCHR complaint or EEOC charge.

Although both employment practices could have been racially discriminatory, that alone is not enough to implicate the second requirement of the single-filing rule.

Griffin v. Dugger, 823 F.2d 1476, 1493 (11th Cir. 1987). Statistical analysis underscored the differences in racial composition and hiring history between boat captains and other employees at Silver Springs. Without more, Ms.

Hawkins' claim of race discrimination, albeit allegedly by the same corporate entity, does not authorize her intervention.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

1. That FCHR enter a final order denying the petition for relief.

   
   

2. That FCHR enter a final order denying the petition to intervene.

DONE and ENTERED this 30th day of November, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 30th day of November, 1992.

APPENDIX

Petitioner's proposed findings of fact Nos. 1-10, 15, 16, 17, 18, 21, 24,

25, 32, the first two sentences of No. 33, Nos. 34, 35, 57, 58, 63, 64, 65, 69-

74, 77-82, 84, 86, 87, 90-93, 95, 98, 99, 100, 105-112, 115, 116, 117, 120-124,

127, 129, 130, 131, 132, 134, 138 and 139 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 11, the CEO was Jim Schorr.

Petitioner's proposed findings of fact Nos. 12, 13, 14, 20, 22, 26, 28-31,

59-62, 66, 67, 68, 76, 83, 85, 88, 89, 94, 102, 103, 104, 118, 119, 126, 128,

135, 136, 140, 143 and 144 pertain to subordinate matters.

With respect to petitioner's proposed finding of fact No. 19, the weight of the evidence established that petitioner did not give the warning on June 20, 1989.

With respect to petitioner's proposed findings of fact Nos. 23, 36, 37, 96,

97, 101, 125 and 142, the witnesses testified as reported.

Petitioner's proposed findings of fact No. 27, the last sentence, of No.

33, Nos. 75, 113 and 141 have been rejected as unsupported by the weight of the evidence.

With respect to petitioner's proposed findings of fact Nos. 36-56, the case has been decided on the assumption, pro hac vice, that race discrimination did take place at some point.

With respect to petitioner's proposed finding of fact No. 114, the transfer occurred in February.

With respect to petitioner's proposed finding of fact No. 137, she had not been performing as assistant manager for ten years.

Respondent's proposed findings of fact Nos. 1 through 5 pertain to the procedural posture of the case, apart from evidence adduced at final hearing.

Respondent's proposed findings of fact Nos. 6-8, 12-15, 17-20, the first sentence of No. 21, Nos. 25, 27, 28, 31-34, 36, 37, 39-47, 49-56, 60, 61, 62,

64, 67, 69-75 and 76 have been adopted, in substance, insofar as material.

With respect to respondent's proposed findings of fact Nos. 9, 10 and 11, it is not clear whether Faison was present and heard Mr. Schorr's remarks, or that he was ever told of any deadline.

With respect to respondent's proposed finding of fact No. 16, it is not clear whether FLAC intended not to hide the fact that one of its employees was videotaping petitioner.

With respect to the last sentence of paragraph No. 21 and Nos. 22, 23 and 24, petitioner was fired for perceived refusal to use the script, whether or not he had time enough to learn it.

Respondent's proposed findings of fact Nos. 26, 29, 30, 35, 38, 48, 58, 63,

77, 78 and 79 pertain to subordinate matters.

Respondent's proposed finding of fact No. 57 is interally inconsistent.

With respect to respondent's proposed finding of fact No. 59, it is unnecessary to decide this question in order to decide the case.

With respect to respondent's proposed finding of fact No. 65, the position was filled on June 28, 1990.

With respect to respondent's proposed finding of fact No. 66, see paragraphs 46-51 the findings of fact.

With respect to respondent's proposed finding of fact No. 67, the evidence was in equipoise on the question of where Ms. Hawkins was when the loss was discovered.

COPIES FURNISHED:

Mary C. O'Rourke

P. Kent Spriggs Spriggs and Johnson

1. West College Avenue Tallahassee, FL 32301

   
   

   Loren E. Levy Bruce Kaster

   Cove, Green and Kaster

   P.O. Box 2720 Ocala, FL 32678

   Margaret Jones, Clerk Commission on Human Relations

2. John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Lewis E. Shelley

117 S. Gadsden Street Tallahassee, Florida 32302

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. 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.

================================================================= AGENCY REMAND FOR FEES CASE; DOAH CASE NO. 94-897F ESTABLISHED

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

DAVID FAISON,

Petitioner,

EEOC Case No. 150892185

1. FCHR Case No. 89-8192

   DOAH Case No. 90-6595

   FLORIDA LEISURE ACQUISITION FCHR Order No. 93-034

   CORPORATION, (ASSIGNED DOAH

   Case No. 94-0897F)

   Respondent.

   /

   ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; REMANDING THE MATTER TO THE

   HEARING OFFICER FOR DETERMINATION OF MONETARY DAMAGES, ATTORNEYS'

   FEES AND COSTS

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner Keith James, Panel Chairperson;

      Commissioner Deborah Wagner; and Commissioner James Mallue.

      
      

   2. Appearances

      
      

      For Petitioner P. Kent Spriggs, Esquire

      David Faison: and Mary C. O'Rourke, Esquire

      324 West College Street Tallahassee, Florida 32301

      
      

      For Respondent Loren E. Levy, Esquire Florida Leisure Post Office Box 10583

      Acquisition Tallahassee, Florida 32302-2583 Corporation:

      Bruce R. Kaster, Esquire Post Office Box 2720 Ocala, Florida 32678

      
      

      Lewis E. Shelley, Esquire

      117 South Gadsden Street Tallahassee, Florida 32301

      
      

   3. Preliminary Matters

      
      

      David Faison, the Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01 - 760.10, Florida Statutes (1991), alleging that Florida Leisure Acquisition Corporation, Respondent herein, unlawfully discriminated against him on the basis of race (black).

      
      

      In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint were investigated. A report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transmitted to the Division of Administrative Hearings (DOAH) for the conduct of a formal hearing.

      
      

      At DOAH, a Petition to Intervene was filed by Ms. Emma Hawkins. She asserted that her claim is similar to Mr. Faison's, i.e., she was discharged by Respondent because of her race (black).

      DOAH hearing officer Robert T. Benton, II, has entered a Recommended Order which denies Ms. Hawkins' Petition to Intervene and which finds that no unlawful discrimination occurred. Mr. Benton recommends that the petition for relief be denied.

      
      

      Pursuant to notice, public deliberations were held on November 16, 1993, in Tallahassee, Florida, before the above named panel of Commissioners.

      
      

   4. Rulings on the Exceptions (a). Exception filed by Intervenor Hawkins

      According to Hawkins, the hearing officer erroneously concludes that intervention is inappropriate because neither Hawkins' asserted claim nor claims by Faison similar to Hawkins' were investigated by the Commission. Another error on the hearing officer's part, argues Hawkins, is the notion that intervention is not allowable because the investigation of Faison's claim did not uncover a "root source of discrimination".

      
      

      This exception by Hawkins is without merit and is denied. The discussion of this issue within the Recommended Order is comprehensive. Each aspect of intervention is addressed. The conclusion by the hearing officer is correct.

      
      

      1. Exceptions filed by Faison

         
         

         According to Faison, the three models of proof presented at trial have been mixed-up and confused by the hearing officer. Faison argues that the mix-up is prejudicial to him, considering that he has the burden of proof.

         
         

         Faison argues that for the "direct evidence" model of proof, he submitted both testimony and proposed findings for the testimony. See Petitioner's proposed findings, paragraphs ## 36 and 37. Rather than setting forth explicit rulings on these proposed findings, the hearing officer states only that the testimony was as indicated. The hearing officer then references these two paragraphs, combines them with others, and explains that the Recommended Order is being issued with an assumption of race-based prejudice, i.e., that discrimination did take place at some point.

         
         

         Faison excepts. He points out that direct evidence is material evidence under all three models of proof: the "direct evidence" model itself; the pattern and practice model; and the McDonnell Douglas evidentiary analysis model.

         
         

         Faison submitted many proposed findings directed to discrediting Respondent's articulated reasons for its employment actions. There were also proposed findings directed to establishing unlawful "pattern and practice" discrimination based upon race (black).

         
         

         Faison points to the disparate treatment he received as compared to two similarly situated boat captains who are white, Mr. Ron Bouvier and Mr. Tony Faraldo. The hearing officer concedes that these boat captains refused to receive "cross training". They were contentious toward and defiant about such training. Of utmost significance is the hearing officer's finding that "cross training" was mandatory in the same manner as use of the prepared script. The hearing officer reasons, however, that without a precise equivalency between the use of the script and the cross training, no disparate treatment is revealed.

         This reasoning by the hearing officer is rejected by the panel majority.

         Finally, Faison excepts to the most consequential finding, the conclusion of law set forth in paragraph #55. The hearing officer concludes that, as a matter of law, Respondent proved that it would have reached the same decision despite the taint of race-based prejudice.

         
         

         The exceptions filed by Faison are sufficiently meritorious to warrant rejection of the overall recommendation that no unlawful race-based discrimination occurred. The panel majority rejects the principal conclusion of law (paragraph #55) stating that Respondent would have reached the same decision even in the absence of race-based prejudice. See Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992), which explains the greater leeway available to the agency head in terms of rejecting a legal conclusion by a DOAH hearing officer. This legal conclusion of no discrimination amounts to a misapplication of the law in view of the factual findings.

         
         

         In Findings of Fact, paragraph #31, it is admitted that Ron Bouvier (white) and Tony Faraldo (white) were contentious about a mandatory duty imposed by Mr. Utz and Mr. Jacobs; that Mr. Bouvier and Mr. Faraldo outright refused to perform that mandatory duty, i.e., cross training; that they were glass bottom boat captains functioning contemporaneously in an identical posture to Petitioner Faison (black), but that they were not discharged (actually not disciplined in any manner whatsoever). Faison was discharged summarily and without reconsideration. It is hereby held that in the context of the anti- discrimination statute, and in regards to being discharged from employment, these three employees, Bouvier, Faraldo and Faison, were similarly situated.

         Precise equivalency is not required. Accord McDonald v. Santa Fe Trail Transportation Company, 96 S.Ct. 2574 (1976). The only difference is Faison's race. Insubordination is a legitimate basis for discharge but it is not an accepted basis for racial discrimination. Disparate treatment in applying discipline, especially when it is combined with racial prejudice, violates the anti-discrimination statutes.

         
         

         In Sennello v. Reserve Life Insurance Company, 667 F. Supp. 1498 (S.D. Fla.

         1987), the court indicates that a pseudo- privilege, such as being insubordinate, may not be doled out in a discriminatory fashion. The panel majority holds that by discharging Faison but standing mute in the face of the insubordination on the part of the two similarly situated boat captains, Bouvier and Faraldo, Respondent engaged in unlawful, disparate treatment.

         
         

         Combined with this disparate treatment is direct evidence of race-based prejudice, especially in terms of the positions of glass bottom boat captains. Faison's proof of the prejudicial mentality of Mr. Utz toward blacks as boat captains is accepted by the hearing officer. See Faison's proposed findings in paragraphs ## 36 and 37, which are credited by the hearing officer. The hearing officer explains that part of the Recommended Order is the assumption that racial discrimination took place at some point. With as many as 94 opportunities to hire, only on one occasion did Respondent hire an African- American to be a boat captain. See Faison's finding of fact, paragraph #35, which likewise is adopted by the hearing officer.

      2. Exceptions filed by FLAC

      
      

      In its exceptions numbered nine (9) and ten (10), FLAC argues against two of the hearing officer's legal conclusions. FLAC states it is erroneous for the hearing officer to find that FLAC appeared "struthious" in reacting to Ms.

      Hawkins' petition to intervene. Whether FLAC was "struthious" in reacting to the petition is now of no import. The hearing officer denies intervention and the panel upholds that denial. Secondly, FLAC states that the conclusion of law numbered 55 is partially correct but partially incorrect. According to FLAC, Faison never produced enough evidence to establish the presence of race-based prejudice in the workplace, and hence the hearing officer errs by including the assumption of prejudice as a part of the Recommended Order. The panel majority rejects this exception. For glass bottom boat captains, there is competent substantial proof of unlawful, disparate treatment, combined with direct evidence of a racially prejudiced mentality.

      
      

      FLAC argues it is correct for the hearing officer to conclude that even in the absence of the discriminatory factor, FLAC proved it would have reached the same decision to summarily discharge Faison. The panel majority rejects this argument by FLAC.

      
      

      To decide whether FLAC would have reached the same decision, the evidence must demonstrate that with the illegitimate factor [Faison's race (black)] removed from the calculus, a sufficient business reason would have, in actuality, induced FLAC to take the same employment action. Accord Hopkins v. Price Waterhouse, 920 F.2d 967, 972 (D.C. Cir. 1990). On the contrary, the evidence is that for Messrs. Bouvier and Faraldo, the illegitimate factor was indeed removed, given that each is white, but the same decision to summarily discharge was not made. With the illegitimate factor removed, the decision by FLAC was to accept contentious insubordination with no discipline whatsoever.

      
      

      The panel majority, therefore, rejects the conclusion of law in paragraph #55. The correct legal conclusion is that unlawful discrimination did occur.

      
      

      Exceptions ## 1 - 8, filed by FLAC argue against designated factual findings made by the hearing officer. None of these exceptions has merit. Faison's response to the exceptions is acknowledged and adopted. In Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), the court explains that factual issues which are susceptible of ordinary methods of proof but which are not infused with an agency's policy considerations are the prerogative of the DOAH hearing officer in his capacity as the finder of fact.

      All parties must accept the findings of fact unless the record is devoid of competent substantial evidence to support those findings. FLAC's exceptions 1 -

      8 are rejected.

      
      

      FLAC's exceptions ## 11 - 13 criticize the hearing officer for certain rulings made on FLAC's proposed findings of fact. There is no merit in these three exceptions either. Faison's pattern and practice model of proof was to establish, in a general overall manner, the presence of race-based prejudice in the workplace. In his ruling on Faison's proposed findings, the hearing officer credited that proof (even if only by way of an assumption). For the specific proof of race-based prejudice in respect to the glass bottom boat captains, Faison submitted direct evidence of prejudice combined with the showing of disparate treatment.

      FLAC's exceptions are rejected. The hearing officer purports to accept, rather than reject, Faison's pattern and practice model of proof. Furthermore, the finding of unlawful discrimination is supported by Faison's direct evidence with the disparate treatment model.

      
      

   5. Findings of Fact

      
      

      The enumerated factual findings are supported by competent substantial evidence. We adopt the hearing officer's findings of fact. We note especially the favorable rulings by the hearing officer on Faison's proposed findings, paragraphs ## 34, 35, 36 - 56.

      
      

   6. Conclusions of Law

      
      

      We reject that portion of the legal conclusion holding that FLAC proved it would have reached the same decision even in the absence of the discriminatory factor. See Recommended Order, Conclusions of Law, paragraph #55. The correct legal conclusion is that the discriminatory factor was present when Faison (black) was summarily discharged (for insubordination) but that in two similar, contemporaneous instances, where the race factor was different, i.e., the instances of contentious insubordination on the part of Mr. Ron Bouvier (white) and Mr. Tony Faraldo (white), FLAC condoned insubordination and applied no discipline whatsoever.

      
      

      We conclude that Faison has established the liability portion of this matter. We note that the parties stipulated for the bifurcation of this administrative proceeding: a determination of liability first and a determination of affirmative relief thereafter as may be appropriate.

      Therefore, we hereby conclude that this matter must be REMANDED to the hearing officer for the calculation of affirmative relief, with all the associated questions, either legal or factual. In respect to amounts of backpay, length of backpay, deductions from backpay, fringe benefits and salary increases attendant to backpay, reinstatement itself and time of reinstatement (versus "front pay"), costs, and amounts for attorney's fees, this case is remanded to DOAH.

      
      

      In Sennello v. Reserve Life Insurance Company, 667 F. Supp. 1498 (S.D. Fla. 1987), the court explains that it is the trial court's duty, after a finding of discrimination, to place the injured party in the position in which he would have been absent the discriminatory action. The DOAH hearing officer functions as the trial court and thus the duty to calculate amounts for relief is with the DOAH hearing officer. Furthermore, in Department of Corrections v. Chandler, No. 87-2124 (Fla. 1st DCA March 28, 1988), the court rules that a FCHR order which finds unlawful discrimination to have occurred but which is without the calculated amount for backpay is a non-final agency order, which is not routinely subject to judicial review. Remand is necessary in order that the Commission may issue an agency order with the necessary finality to comply with the court's ruling supra.

      
      

   7. Remand

Additional proceeding, in accordance with the requirements of Section 120.57(1), Florida Statutes, is appropriate with respect to the determinations of monetary amounts for affirmative relief, including fringe benefits,

deductions, costs, attorneys' fees, etc. If reinstatement is impractical, then reasonable "front pay" must be awarded. The panel remands this matter to DOAH in accordance with the rulings set forth supra.

It is so ORDERED.

Dated this 16th day of February, 1994. FOR THE COMMISSION ON HUMAN RELATIONS:

By: Commissioner Keith James,

Panel Chairperson, and Commissioner Deborah Wagner

Commissioner James Mallue (dissenting):

I vote to adopt the Recommended Order.

FILED this 16th day of February, 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies furnished to:

P. Kent Spriggs, Esquire Mary C. O'Rourke, Esquire

324 West College Street Tallahassee, Florida 32301

Loren E. Levy, Esquire Post Office Box 10583

Tallahassee, Florida 32302-2583

Bruce R. Kaster, Esquire Post Office Box 2720 Ocala, Florida 32678

Lewis E. Shelley, Esquire

117 South Gadsden Street Tallahassee, Florida 32301

Robert T. Benton, II, DOAH Hearing Officer Harden King, FCHR Legal Advisor

=================================================================

ORDER ON REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID FALSON, )

)

Petitioner, )

)

and )

)

EMMA HAWKINS, )

)

Intervenor, ) CASE NO. 90-6595 vs. )

) FLORIDA LEISURE ACQUISITION ) CORPORATION, )

)

Respondent. )

)

ORDER ON REMAND

Inasmuch as Robert T. Benton, II, is no longer with the Division of Administrative Hearings and the undersigned has been designated as the Hearing Officer for purpose of further proceedings in the above-styled case and, pursuant to Section 120.57(I), Florida Statutes, it is

ORDERED:

1. This proceeding will be governed by Chapters 120 and 760, Florida Statutes, and Chapter 60Q-2, Florida Administrative Code.

   
   

2. The parties shall file the original and one copy of all pleadings and papers with the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, 32399-1550, with a copy served upon each party. A document is filed when received by the Clerk of the Division of Administrative Hearings during normal business hours. Every document filed shall include the case number and shall indicate that all parties have been served with a copy.

   
   

3. The parties shall confer and, within TEN days from the date of this order, inform the Hearing Officer in writing as to the following:

   
   

   1. Estimated length of time necessary to conduct the final hearing in this cause;

      
      

   2. Suggested location of hearing that is most convenient to parties and witnesses; and

   3. Several suggested mutually acceptable dates for scheduling the final hearing. Such dates shall be within 90 days from the date of this order, unless the parties agree to additional time in order to accommodate negotiations, mediation, or

   prehearing discovery, in which case the parties may select later dates, not beyond 180 days from the date of this order.

   
   

   After receipt of the suggested dates, the undersigned will issue a Notice of Hearing not less than 14 days prior to the date of hearing, unless otherwise agreed by the parties and Hearing Officer. If the dates selected by the parties conflict with the schedule of the Hearing Officer, the hearing will be set in accordance with the Hearing Of ficer's calendar. The parties should therefore suggest as many dates as possible.

   
   

4. Failure to comply with the requirements of paragraph three will be deemed a waiver of venue rights and the final hearing will be scheduled for a time and place convenient to the Hearing Officer.

   
   

5. Continuances will be granted only for good cause. Requests for continuances must be made at least FIVE days prior to the date of hearing, except in cases of extreme emergency. In this regard, attention is directed to Rule 60Q-2.017, Florida Administrative Code.

   
   

6. Discovery may be undertaken in the manner provided by the Florida Rules of Civil Procedure. If the parties require discovery in this proceeding, it should be initiated immediately and must be completed FIFTEEN days before the date of final hearing unless extension of time for good cause is granted. A continuance of the original date of the final hearing does not extend the deadline for completion of discovery, unless the order for a continuance expressly so provides.

   
   

7. Rule 60Q-2.008, Florida Administrative Code, provides that a party may be represented by an attorney or other qualified representative, or may appear on his own behalf. If a party desires to be represented by a person who is not an attorney, the party shall so notify the Hearing Officer within ten days from the date of this order.

DONE and ORDERED this 18th day of March, 1994, in Tallahassee, Florida.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1984.

COPIES FURNISHED:

Mary C. O'Rourke

P. Kent Spriggs Spriggs and Johnson

324 West College Avenue Tallahassee, Florida 32301

Loren E. Levy Bruce R. Kaster

Cove, Green and Kaster

P.O. Box 2720

Ocala, Florida 32678

Lewis E. Shelley

117 South Gadsden Street Tallahassee, Florida 32302

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

=================================================================

ORDER DECLINING REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID FAISON, )

)

Petitioner, )

and )

)

EMMA HAWKINS, )

) CASE NO. 90-6595

Intervenor, ) CASE NO. 94-0897F

)

vs. )

) FLORIDA LEISURE ACQUISITION CORPORATION, )

)

Respondent. )

)

ORDER DECLINING REMAND

This cause came on to be heard upon responses to the Order To Show Cause Why Remand Should Not Be Declined, issued by the Hearing Officer on August 10, 1994. The parties do not oppose the decline of remand by the Hearing Officer.

The Florida Human Relations Commission (FHRC) previously issued its order remand the above-styled cause to the Hearing Officer for determination of monetary damages, attorneys' fees and costs. 1/

In its remand order, FHRC rejects the Hearing Officer's finding that Respondent did not engage in a racially discriminatory employment practice by terminating the employment of David Faison. FHRC did not, however, determine that the Hearing Officer's recommendation was not supported by competent substantial evidence. Instead, FHRC adops the findings of fact of the Hearing Officer.

The determination of motivating is a factual matter. Section 120.57(1)(b)10, Florida Statutes (1983), states:

The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement unless the agency first determines from a view of the complete record, and states

with particularly in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

To proceed with the remand directive would appear, particularly in light of the decisions recently issued in Florida Leisure Acquisition Corp. vs. Faison,

19 Fla. L. Weekly D1483 (Fla. 5th DCA July. 8, 1994), a less than prudent use of administrative hearing resources.

DONE and ENTERED this 30th day of August, 1994, in Tallahassee, Florida.

DON W. DAVIS

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 30th day of August, 1994.

COPIES FURNISHED:

Mary C. O'Rourke

P. Kent Spriggs Spriggs and Johnson

324 West College Avenue Tallahassee, FL 32301

Loren E. Levy

P. O. Box 10583 Tallahassee, FL 32302

Bruce Kaster

P. O. Box 2720 Ocala, FL 32678

Lewis E. Shelley

117 S. Gadsden Street Tallahassee, Florida 32302

Ms. Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Docket for Case No: 90-006595

Orders for Case No: 90-006595