STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. COHEN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-7300

) DEPARTMENT OF HEALTH AND REHABILITATIVE ) SERVICES, JUVENILE DETENTION CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal

hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Jacksonville, Florida.

APPEARANCES

For Petitioner: D. Ola David

Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301

For Respondent: Scott Leemis, Esq.

HRS District 4 Legal Office

P.O. Box 2417

Jacksonville, FL 32231-0083 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner, John W. Cohen, Jr., has been the victim of an unlawful employment practice within the meaning of Chapter

760, Florida Statutes, by being terminated in retaliation for his earlier-filed grievances and employment discrimination claims.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief from an allegedly unlawful employment practice by the

Petitioner. In his Petition, the Petitioner contended that he had been terminated because of discrimination due to his race and due to retaliation by his employer for past-filed grievances and similar employment discrimination claims or actions. The Petitioner's representative at hearing, however, stated that the Petitioner did not intend to pursue a claim of discrimination on account of race but, rather, for the alleged retaliation against the Petitioner resulting in his termination.

The cause came on for hearing as noticed. The Petitioner presented seven (7) witnesses, most of whom were supervisors or coworkers of the Petitioner, and including the

Petitioner's testimony. The Respondent presented the testimony of three (3) witnesses, supervisory personnel of the Respondent agency. The Petitioner presented 33 exhibits, which were admitted into evidence; and the Respondent's Exhibits 1 and 2 were admitted into evidence. The Respondent elected to have the proceedings transcribed at the end of the hearing and both parties availed themselves of the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. An extended briefing schedule was agreed to and granted. Thereafter, the Petitioner moved for, and the Respondent agreed to, a further extension of the post-hearing briefing schedule, which was granted. Subsequently, both parties filed proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those proposed findings of fact are addressed in this Recommended Order and specifically again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and

   Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding.

   
   

2. In the course of his employment with the

   Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances.

   
   

3. The Petitioner maintains that he first became

   aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief.

   
   

4. The Petitioner again felt that he had suffered

   disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms.

   Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for

   tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent.

   This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment.

   
   

5. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415,

   Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley.

6. In any event, because both allegations of child

   abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer.

   
   

7. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional

   Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility.

   
   

8. At the master control station, Detention Care

   Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects.

9. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so.

   Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge.

   
   

10. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer.

    
    

11. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no

    discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline.

    Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

13. In an employment discrimination action, the petitioner has the ultimate burden of proving discrimination by a preponderance of the evidence. In McDonnell-Douglas Corporation

    1. Green, 411 U.S. 792 (1973), the U.S. Supreme Court set forth the order of proof in discrimination cases where disparate treatment is alleged:

       
       

       1. The employee must establish a prima facie case;

       2. The employer can attempt to rebut the prima facie showing by articulating legitimate rational nondiscriminatory reasons for the employment action in question; and

       3. The employee can then attempt to show that the employer's proffered explanation of the action taken is merely pretextual and that discriminatory intent was actually involved in the employment action at issue.

    
    

14. In order to establish a prima facie case, the Petitioner must establish (1) that he is a member of the protected group or class; (2) that an adverse employment action was taken against him, e.g., discharge; (3) that he was subjected to disparate treatment in relation to other employees similarly situated as, for instance, that he was terminated or subjected to more severe discipline than other employees similarly situated by committing similar acts. See, Carter v. City of Miami, 870 F.2d at 582, citing Castle v. Sangamo Weston, 837 F.2d 1550, 1558 (11th Cir. 1988); and Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.) cert. denied 474 U.S. 1005, 106 S.Ct.

    525 (1985) and cases quoted therein (by analogy). The Petitioner herein has satisfied the first requirement of the prima facie test by establishing that he is a member of a protected group or class, which is all employees who have had prior disciplinary altercations with the employer with prior disciplinary measures meted out against those employees who have a later disciplinary action taken against them, such as the discharge of the Petitioner. Likewise, the Petitioner has met the second part of the test for a prima facie showing by establishing that an adverse employment action was taken against him, e.g., his discharge, which is, of course, undisputed.

15. The Petitioner, however, did not present any evidence that he was terminated from his position of employment for using abusive language toward and physically assaulting his supervisor, causing injury to him, while other employees, who were similarly situated by having engaged in similar conduct, had not received such discipline.

    
    

16. Further, although the final action letter terminating the Petitioner from his employment referenced tardiness, the overall tenor of the Respondent's unrefuted evidence, particularly that of Ms. Lucy Farley, one of the Petitioner's supervisors, was to the effect that the overriding and essential reason that the Petitioner was terminated was his assaulting of his supervisor and not merely because of tardiness. Thus, although there was some testimony regarding varying discipline for leave and attendance policy violations at the Detention Center under the supervision of Ms. Thelma Menendez, this cannot serve as a probative basis for finding that the Petitioner was actually terminated due to tardiness when other employees had not suffered so severe a penalty on the basis of their tardiness or attendance. The testimony of Ms. Stone, who testified concerning the leave and attendance records of some five (5) other employees, did not establish a basis for discrimination against the Petitioner by focusing on the tardiness records and relative disciplines meted out to those other employees. The periods of attendance Ms. Stone testified about regarding those other employees were for varying, inconsistent periods of time and, indeed, some of those employees were disciplined differently than others. However, it was established in the record that the supervisor, Ms. Menendez, who meted out the varying disciplines for tardiness amongst those employees, was criticized and counselled by the employer for failure to sufficiently supervise and equally enforce the leave and attendance policies regarding employees under her supervision.

    
    

17. The differing disciplinary measures taken against employees for tardiness, including the Petitioner, is not a sufficient basis to establish any retaliation by Ms. Menendez or other supervisors against the Petitioner. The tardiness issue is not a sufficient basis to establish that the Petitioner was subjected to disparate and more severe discipline, as compared to other employees similarly situated, because those other employees were not similarly situated in circumstance to the Petitioner. While they may have been tardy in some instances as much or more than the Petitioner and received less severe discipline, their offense was not coupled with the much more serious offense of physically assaulting and injuring their supervisor. This fact renders the Petitioner's conduct and circumstance not similarly situated in character to that of those other employees with which the Petitioner sought to compare his situation. Thus, the showing that other employees may have received less severe discipline for tardiness cannot serve to establish a prima facie case of disparate, discriminatory treatment because the Petitioner's ultimate dismissal from employment was predicated, in essence, on his assaulting and injuring his supervisor.

18. In fact, as shown by the testimony of Ms. Farley, as corroborated by other testimony adduced by the Respondent, the physical assault on Mr. Chambliss was a good and sufficient reason for termination of the Petitioner under the rules and policies of the Respondent without the necessity for consideration of the tardiness issue. The physical assault of a co-worker or a supervisor by a detention care employee, such as the Petitioner, is especially serious at an institution maintaining custody over delinquent juveniles, as was the Respondent and the facility involved in this case. Such detention employees are held to a high standard of setting an example of nonviolent behavior to such juvenile inmates because of their particularly sensitive and responsible position as adult role models for these young people. The testimony of the Respondent's witnesses clearly establishes in this regard good, rational, nondiscriminatory reasons for the Petitioner's dismissal. In view of the sensitive nature of his employment position and responsibility as an adult role model, physical violence perpetrated against his co-worker or supervisor or any other person in the environs of that facility cannot be tolerated by the employing agency. Such reasons, established by preponderant testimony by the Respondent, are a good, sufficient, and nondiscriminatory articulation of the basis for the dismissal. The Respondent's evidence delineated above culminating in the above Findings of Fact more than satisfied the burden of the Respondent to produce a legitimate, non- discriminatory reason for its employment decision to terminate the Petitioner, even if be assumed, arguendo, that the Petitioner had made out a prima facie case of discrimination.

    
    

19. The U.S. Supreme Court, in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094-95 (1981), held that the defendant to a charge of discrimination must only meet a burden of production, rather than persuasion, to rebut the plaintiff's prima facie case. Here, the employer clearly established that the physical assault, under the circumstances of the Petitioner's position of employment and his responsibilities attendant thereto, constituted in itself a good and sufficient rational, nondiscriminatory reason for his termination; and the Petitioner did not establish that other employees were similarly situated by having assaulted a coworker or supervisor without having been terminated.

    
    

20. Moreover, the fact that Ms. Menendez punished some employees differently for tardiness would not prove disparate, discriminatory treatment of the Petitioner, even if the tardiness of the Petitioner had been a necessary factor in deciding to terminate him. The evidence of those other five (5) employees' attendance records, for one thing, does not clearly establish that they were tardy in the same or greater amounts over a like period of time, as the Petitioner; however, even if they were, the evidence establishes that the employer did not condone the differing disciplinary measures meted out to those employees. In fact, had the decision to terminate the Petitioner necessarily been based upon tardiness, which it was not, Ms. Menendez clearly played no role at all in the decision to terminate the Petitioner. That decision was made by Ms. Farley and other

    supervisory personnel of the Respondent, who had not condoned the differing disciplinary measures previously meted out by Ms.

    Menendez for tardiness. They demonstrated the lack of condonation of such varying disciplines by correcting and admonishing Ms. Menendez for doing so prior to the termination of the Petitioner. In Mira v. Monroe County School Board, 687 F.Supp. 1538 (S.D. Fla. 1988), the court rejected a plaintiff's position that such a discriminatory act by a non-decision-making employee or supervisor as being direct evidence of discrimination because the individual engaging in the allegedly discriminatory act was an individual who had no effective role in the employment decision at issue in that case. The court concluded that the allegedly discriminatory comments made by the non-decision-making supervisor in that case situation were not causally connected to the plaintiff's failure to obtain a position in question in that case. See, also, Adams v. United Airlines, 578 F.Supp. 26 (N.D. Ill. 1983), where the court found that a supervisor's discriminatory comments were not evidence of the employer's discriminatory motives where the supervisor was not involved in the plaintiff's discharge. Here, too, even if Ms. Menendez meted out inconsistent discipline for tardiness and even if the Petitioner's tardiness were a contributing factor to his termination, which was not proven, Ms. Menendez had no role in the decision to terminate the Petitioner; and prior to the situation arising involving the Petitioner's termination, the Respondent had already repudiated and ordered cessation of Ms.

    Menendez's purported inconsistent discipline for tardiness.

    
    

21. In summary, the Petitioner failed to establish his prima facie case of disparate treatment in connection with his termination by his former employer, the Respondent. Even if such a prima facie case had been demonstrated, a sufficient, legitimate non-discriminatory reason for his termination was established by the Respondent and no probative evidence was then brought forward by the Petitioner to show that such reasons were a mere pretext for a true discriminatory intent. See Burdine, supra. Accordingly, it must be concluded that the Petitioner has failed to establish a case of discrimination by direct or circumstantial evidence. The Respondent has established by unrefuted evidence that it followed its policies and rules in a nondiscriminatory way in electing to terminate the Petitioner for assaulting and injurying his supervisor.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety.

DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 31st day of January, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300

Petitioner's Proposed Findings of Fact

1-4. Accepted, but not necessarily as probative of material issues presented.

1. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

   
   

2. Accepted.

7-10. Accepted, but not as probative of material issues presented, standing alone.

11. Accepted, but not in itself probative of the material dispositive issues presented.

12-14. Rejected, as not entirely in accordance with

the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

15. Accepted, but not itself dispositive of material issues presented.

16-23. Accepted, but not in themselves dispositive of the material issues presented.

1. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

   
   

2. Accepted, but not itself dispositive of material issues presented.

   
   

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

27-28. Rejected, as subordinate to the Hearing

Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record.

1. Rejected, as immaterial.

   
   

2. Rejected, as subordinate to the Hearing Officer's

   findings of fact on this subject matter and as being immaterial.

   
   

3. Accepted as to the first clause, but as to the

   second, rejected as not being entirely in accordance with the preponderant evidence of record.

   
   

4. Rejected, as irrelevant. It was not demonstrated

that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation.

Respondent's Proposed Findings of Fact 1-11. Accepted.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

D. Ola David

Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301

Scott Leemis, Esq.

HRS District 4 Legal Office

P.O. Box 2417

Jacksonville, FL 32231-0083

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: 90-007300

Orders for Case No: 90-007300