STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT COX, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2760

)

FLORIDA PUBLIC EMPLOYEES )

COUNCIL 79, AFSCME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on April 30, 1992 in Tampa, Florida.

APPEARANCES

For Petitioner: Robert Cox, Pro se

8514- #3 Daffodil Drive

Hudson, Florida 34667

For Respondent: Ben R. Patterson, Esquire

Patterson and Traynham Post Office Box 4289

Tallahassee, Florida 32315-4289 STATEMENT OF THE ISSUES

The issue presented, is whether the Respondent, Florida Public Employees Council 79, AFSCME terminated Petitioner, Robert Cox's employment because of his race (white) or his handicap (alcoholism) in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

In this proceeding, Cox is challenging his termination of employment by the Respondent, Florida Public Employees Council 79, AFSCME (Council 79), and alleges that his employment was terminated because of his race and handicap, to wit: white and alcoholism.

Cox filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) dated January 3, 1989. On November 9, 1990, the Commission issued a Notice of Determination: No Cause. Cox then filed a Request For Redetermination. On March 25, 1991, the Commission issued a Notice of Redetermination: Cause. Efforts to conciliate the complaint was unsuccessful, and on April 9, 1991 the Commission issued a Notice of Failure of Conciliation.

Thereafter, Cox filed a Petition For Relief From An Unlawful Employment Practice dated April 26, 1991 with the Commission. On May 6, 1991 by a Transmittal of Petition, this matter was transferred to the Division of Administrative Hearings by the Commission for the assignment of a Hearing Officer and for the conduct of a formal administrative hearing. The matter was initially scheduled for hearing on August 15, 1991; however, in order for Cox to seek and obtain legal counsel, the matter was continued without objection from Council 79, and rescheduled for hearing on April 30, 1992.

At the hearing, Cox testified in his own behalf and presented the testimony of Blondie P. Jordan. Cox's exhibits 1 through 14 and 16 through 19 were received as evidence in this case. Cox's exhibit 15 was rejected. Respondent presented the testimony of Blondie P. Jordan, David McGhee, Wesley Leon, James

1. Newell, Devora Solomon, Linoria Anthony and Charles Brannon. Council 79's exhibits 1 through 5 were received as evidence in this case.

   
   

   The parties did not provide a copy of the transcript of this case to the Division of Administrative Hearings. Cox did not file any proposed findings of fact with the Division of Administrative Hearings. Council 79 timely filed its proposed findings of fact with the Division of Administrative Hearings. A ruling on each proposed finding of fact submitted by Council 79 has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

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

   
   

   1. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988.

      
      

   2. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79.

      
      

   3. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan.

      
      

   4. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney.

      
      

   5. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan.

   6. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business.

      
      

   7. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate.

      
      

   8. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan.

      
      

   9. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees.

      
      

   10. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director.

       
       

   11. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters.

       
       

   12. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region

       III. McGhee assumed the responsibilities of Acting Regional Director for Region

       III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79.

       
       

   13. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International.

       
       

   14. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism.

       
       

   15. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism.

       
       

   16. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988.

       
       

   17. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy.

       
       

   18. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay.

       
       

   19. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied.

       
       

   20. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).

       CONCLUSIONS OF LAW

       
       

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

       
       

   22. Council 79 is an employer as defined in Section 760.02(6), Florida Statutes, to mean "...any person employing 15 or more employees for each working day in each of 20 or more calendar weeks..."

       
       

   23. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       
       

   24. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 421 U.S.C., 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So. 2d 103, (1 DCA Fla. 1981).

       
       

   25. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facia case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by a preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.

       
       

   26. To present a prima facia case, the Petitioner must present facts which "...'raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors'..." Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, 450 U.S. 248. The prima facia case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S.324, 358 and n. 44 (1977).

       
       

   27. In order to establish a prima facia case, Petitioner must show: (1) he is a member of a protected class; (2) he is qualified; (3) he was replaced by a person outside the protected class. Cf. McDonnell Douglas, 411 U.S. 792. The dispute centers not on Petitioner's capabilities, but on his job performance. Considering the evidence in the light most favorable to Petitioner, it shows that the Petitioner was capable of satisfactory performance on the job but failed to perform his assigned duties satisfactorily. However, Petitioner has established a prima facia case of discrimination.

       
       

   28. There is competent, substantial evidence in the record to show that Petitioner, even though he was not always made aware of his shortcomings, was not performing his job satisfactorily, and that Petitioner was discharged for failing to service the local unions and timely negotiating contracts with employers for the local unions. It is apparent from the record, that the Respondent has articulated a legitimate, nondiscriminatory reason for Petitioner's discharge, and thereby rebutted Petitioner's prima facia case.

       
       

   29. Petitioner argues that Respondent's stated reasons for his discharge are merely a pretext for unlawful discrimination. However, there is

insufficient evidence in the record to show that Respondent's decision to discharge Petitioner was motivated by his race or his alleged handicap.

Therefore, Petitioner has failed to meet his burden to show that the reasons offered by Respondent for his discharge were pretextual and that the intent behind Petitioner's discharge was actually discriminatory.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed.

DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992.

APPENDIX TO RECOMMENDED ORDER

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

Rulings on Proposed Findings of Fact Submitted by the Petitioner

The Petitioner did not file any Proposed Findings of Fact.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19).

   
   

2. Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6.

   
   

3. Proposed finding of fact 15 is neither material nor relevant.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

125 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, Esquire General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Robert Cox, Pro se

8514-#3, Daffodil Drive

Hudson, FL 34667

Ben R. Patterson, Esquire Patterson and Traynham

315 Beard Street Post Office Box 4289

Tallahassee, FL 32315

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ROBERT COX,

EEOC Case No. 151890134

Petitioner, FCHR Case No. 89-1977 DOAH Case No. 91-2760

FLORIDA PUBLIC EMPLOYEES FCHR Order No. 93-013 COUNCIL 79, AFSCME,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Robert Cox filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1991). Petitioner alleged Florida Public Employees Council 79, AFSCME, unlawfully discriminated against him on the bases of handicaprace (white) and handicap (alcoholism).

The allegations of discrimination set forth in the complaint were investigated. On November 9, 1990, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred. A Redetermination: Cause was issued on March 27, 1991.

On April 30, 1991, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1). On July 9, 1992, DOAH Hearing Officer William R. Cave entered a Recommended Order of dismissal.

Public deliberations were held on June 17, 1993, in Orlando, Florida before this panel of commissioners.

Findings of Fact

Having considered the hearing officer's findings of fact and being particularly mindful that the Commission may not reverse such findings without a complete record and in the absence of either party providing the Commission with a written transcript of the formal proceedings, the panel will not disturb the hearing officer's findings of fact. Section 120.57(1)(b)10, Fla. Stat. (1991). The hearing officer's findings of fact are hereby adopted.

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

Petitioner has the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9. 110.

DONE AND ORDERED this 20th day of July, 1993. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Keith James Panel Chairperson;

Commissioner Stella M. Lewis;

and Commissioner Deborah H. Wagner.

FILED this 4th day of August 1993 in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies Furnished:

Robert Cox, Petitioner (C.M. 250 119 420)

Ben R. Patterson, Attorney

for Respondent (C.M. 250 119 412) William R. Cave, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 91-002760

Orders for Case No: 91-002760