STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH E. BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2763

) STONE CONTAINER CORPORATION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 13, 1991.

APPEARANCES

For Petitioner: Mr. Kenneth E. Brown, pro se

1014 Mercedes Avenue

Panama City, Florida 32401

For Respondent: G. Thomas Harper, Esquire

HAYNSWORTH, BALDWIN, JOHNSON AND HARPER

Post Office Box 40593 Jacksonville, Florida 32203-0593

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

On March 17, 1990, the Petitioner filed a charge of discrimination claiming that he was discharged because of his race (Black). On October 31, 1990, the Florida Commission on Human Relations issued a "Notice of Determination: No Cause" in this case. The Notice held that there was no reasonable cause to believe that an unlawful employment practice had occurred in Petitioner's case. On December 31, 1990, the Florida Commission on Human Relations issued a "Notice of Re-Determination: No Cause". This decision also held that there was no reasonable cause to believe that an unlawful employment practice occurred.

Petitioner disagreed with the Commission's determinations and requested a formal administrative hearing. Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf, but did not present any exhibits. Respondent did not offer any testimonial evidence but introduced four exhibits into evidence.

Neither Petitioner nor Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Kenneth E. Brown (Brown) is a black male and is a person as defined within Chapter 760, Florida Statutes. He had been employed by Respondent Stone Container Corporation for several years. In 1989, Petitioner was employed as an electrician/maintenance repairman at the Corporation's mill plant in Panama City, Florida. Part of his duties was to perform preventive maintenance on the plant's machinery. Petitioner's work time did not include a

   30 minute lunch allowed by the Company. Time cards were completed by Petitioner and turned in at the mill office.

   
   

2. Stone Container Corporation is an employer as defined within Chapter 760, Florida Statutes.

   
   

3. Throughout his employment the mill had a strict policy against an employee leaving work without advising his or her supervisor and working on personal property while the employee was on duty at the plant. Such violations of company policy could result in dismissal of the employee and had resulted in dismissal of both non-minority and minority employees in the past. The Corporation also had a policy on an employee keeping accurate records of the time spent on the job. Again failure to comply with this policy could result in dismissal of the employee.

   
   

4. On October 8, 1989, Petitioner left work early to go to lunch without advising his supervisor and remained out to lunch for more than his allotted time. The Petitioner was out of the plant for one hour and 50 minutes (1:50). None of the time Petitioner took for lunch was reflected on Petitioner's time card. Petitioner's time card showed that he had worked eight full hours when he had not actually done so. Additionally, Petitioner used work time to work on his personal vehicle in the mill parking lot.

   
   

5. Petitioner, was discharged by the Corporation a few weeks later for leaving his job without authorization from his supervisor and failing to reflect his extended absence on his time card.

   
   

6. Petitioner made no showing that there was any relationship between his race and his termination. Likewise, Petitioner did not present any evidence that on October 8, 1989, he satisfactorily performed his job. Therefore, Petitioner has failed to prove a prima facie case and Petitioner's charge of discrimination should be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

8. In McDonnell Douglas Corp. v. Green (McDonnell Douglas), 411 U.S. 792,

   5 FEP Cases 965 (1973) and Texas Department of Community Affairs v. Burdine (Burdine), 450 U.S. 258, 25 FEP Cases 113 (1981), the U. S. Supreme Court established the basic allocation of burdens and order of presentation of proof

   in discrimination cases. The burden of proof was described by the U.S. Supreme Court in the Burdine decision as follows:

   
   

   First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not its true reasons, but were a pretext for discrimination.

   
   

   25 FEP Cases at 115 (citations omitted). These federal standards have been adopted by the Florida Commission on Human Relations and the Florida courts and are applicable to cases arising under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So.2d 103, 108 (Fla. 1st D.C.A. 1981); Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5477 (1985); Jo Nees v. Delchamps, Inc., 8 FALR 4389 (1986).

   
   

9. In essence, McDonnell Douglas provides for three (3) steps which create a series of shifting burdens of proof that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n. 8. However, the burden of proof, in race discrimination cases, at all times remains with the Petitioner and the employer's burden is only that of producing evidence to rebut any prima facie showing of discrimination made by a Petitioner. McWilliams v. Escambia County School Board, 658 F.2d 326, 331 5th Cir. 1981).

   
   

10. In the first step under McDonnell Douglas, the Petitioner must prove the existence of facts that establish a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. To establish such a prima facie case in a discharge situation, the Petitioner must show:

    
    

    1. He/she is a member of a protected class;

    2. He/she was qualified and able to perform his/her duties and did perform such duties satisfactorily; and

    3. He/she was treated differently than other similarly situated individuals not within his/her protected group.

       
       

11. The Petitioner's burden is discharged only if he or she establishes such facts by a preponderance of the evidence. Burdine, 450 U.S. at 252-53. The type of factual showing that will suffice to carry this burden will vary with the circumstances of each individual claim, McDonnell Douglas, 411 U.S. at 802 n. 13; however, more is required than a mere showing that the Petitioner is a member of a protected group and was adversely treated. Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir. 1982). The Petitioner must prove facts from which a nexus can be inferred between the alleged adverse action and the Petitioner's protected group status. See Stock v. Horsman Dolls, Inc., 27 FEP Cases 1423, 1425 (D.S.C. 1981); Ortiz v. Ciba-Geigy Corp., 87

    F.R.D. 723, 234-35 (N.D. Ill. 1980). Failure of the Petitioner to produce

    evidence from which this causal connection can be inferred precludes the Petitioner from making out a prima facie case. Bobbitt v. PBA, Inc., 31 FEP Cases 366, 367 (D. Minn. 1983).

    
    

12. If a Petitioner establishes a prima facie case, then the burden of coming forward with sufficient evidence to rebut a prima facie case shifts to the defendant. To meet this burden, the defendant needs only to articulate a legitimate, nondiscriminatory reason for its action through the introduction of admissible evidence. "[T]he employer's burden is satisfied if he simply explains what he has done' or 'produce(es) evidence of legitimate, nondiscriminatory reasons.'" Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n. 2 (19978) (quoting language of dissent with approval).

    
    

13. However, the ultimate burden of proof does not shift to the defendant. As the U.S. Supreme Court has explained:

    
    

    The defendant need not persuade the court that it was actually motivated by the proffered reasons . . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. . . .

    
    

    * * *

    
    

    The plaintiff retains the burden of persuasion.

    
    

    Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 254-56 (citations omitted).

    
    

14. In this case, Petitioner has failed to establish a prima facie case. There was no evidence of a nexus between the Respondent's termination of Petitioner and Petitioner's race. Additionally, Petitioner did not establish that he adequately performed his employment duties on October 8, 1989. Since Petitioner did not establish a prima facie case, Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioners complaint.

RECOMMENDED this 18th day of October, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

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 18th day of October, 1991.

COPIES FURNISHED:

Mr. Kenneth E. Brown, pro se 1014 Mercedes Avenue

Panama City, Florida 32401

G. Thomas Harper, Esquire HAYNSWORTH, BALDWIN, JOHNSON AND

HARPER

Post Office Box 40593 Jacksonville, Florida 32203-0593

Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570

Ronald M. McElrath Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

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

Docket for Case No: 91-002763

Orders for Case No: 91-002763