HOWARD B. STEELE, JR., )
vs. ) CASE NO. 91-6590
Respondent. )
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 June 11 and 12, 1992.
FOR PETITIONER: Howard B. Steele, Jr., pro se
Whether Petitioner has been the subject of an unlawful employment practice.
Petitioner, Howard K. Steele, Jr., filed a complaint of discrimination with the Florida Commission on Human Relations, pursuant to the Human Rights Act of 1977. The Commission found no cause to believe an unlawful employment practice had occurred. Subsequently, Petitioner asked for a redetermination of the Commission's finding. The Commission again found no cause to believe an unlawful employment practice had occurred. On September 9, 1991, Petitioner filed a Petition for Relief from an Unlawful Employment Practice. The Petition for Relief was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in his own behalf and called Sharon Sheffield, James A. Powell, Tommy Flanders, John Barnes, L. D. Marlowe, Willie Mallard, and Robert Gray as witnesses. Petitioner also introduced nine exhibits into evidence. Respondent called Ralph Hester, the former City Manager; Frank Faison, the current city manager; Theresa Bilek, former acting city manager, and the current finance director; Twila Miller, city accounting clerk, Bob Gray, sanitation foreman; and Clyde Hill, public works director. The City introduced
27 exhibits into evidence.
Petitioner did not file a Proposed Recommended Order, but filed a document titled "Summation." Petitioner's summation was filed on July 21, 1992.
Petitioner's summation was considered in the preparation of this Recommended Order. However, the summation consisted of legal argument and did not contain findings of fact on which rulings could be made. Respondent filed a Proposed Recommended Order on August 4, 1992. Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on Respondent's proposals are contained in the Appendix to this Recommended Order.
Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department.
The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and
14.3 percent, respectively. The general population of blacks in Lynn Haven is
10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks.
In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances.
Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase.
Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification.
The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally.
In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years.
Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory.
Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered.
In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987.
On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which
brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour.
It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury.
Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan.
Mr. Flanders' current hourly rate is $8.45 per hour.
John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading.
James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall.
Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open.
L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately
$11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele.
Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour.
In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position.
In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted.
Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
Respondent, The City of Lynn Haven, is an employer within the definition of the Florida Human Rights Act of 1977 ("the Act"). Section 760.02(6), Florida Statutes (1989).
Because of the similarity between the Florida Human Rights Act and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. Section 2000e, et seq., the burden of proof in Title VII cases applies to cases brought under the Florida Human Rights Act. School Board of Leon Co. v. Weaver.
556 So.2d 443 (Fla. 1st DCA 1990); School Bd. of Leon Co. v. Hargis, 400 So.2d 103, 108, n.2 (Fla. 1st DCA 1981).
In this case, Petitioner seeks relief under the individual disparate treatment theory of discrimination for both pay and promotional opportunities. In a disparate treatment case, a Petitioner must prove that he or she was treated differently because of a protected characteristic such as his or her race, color, or national origin. Additionally, disparate treatment cases require the Petitioner to prove the Respondent had a discriminatory intent or motive. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 (1977). Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). The Petitioner may prove his claim by direct evidence of discriminatory motive or by circumstantial evidence that gives rise to an inference of discriminatory motive. Maggio v. Martin Marrietta Aerospace, 9 FALR 2168, 2173 (1986). In this case, there was no direct evidence of discrimination. Therefore, Mr. Steele must rely on circumstantial evidence in order to establish his case.
The United States Supreme Court has set forth the allocation of proof in a disparate treatment case when no direct evidence is present. This test was first set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and has been continually applied and refined in subsequent decisions. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Patterson v. McLean, 491 U.S. , 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989).
Under McDonnell and its progeny, the Petitioner must first establish a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds, the Respondent must then offer a legitimate, nondiscriminatory reason for its actions. Third, should the Respondent carry its burden, the Petitioner must establish that this supposedly legitimate, nondiscriminatory reason was a pretext to cover an illegal motive. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (25 FEP Cases 113)(1981)(quoting McDonnell Douglas Corp. v. Green 411 U.S. 792, 802 (5 FEP Cases 965)(1973); see also United States Postal Serv. v. Aikens, 460 U.S. 711 (31 FEP Cases 609)(1983).
To establish a prima facie case in a disparate pay case, the Petitioner must show that 1) he belongs to a racial minority, and 2) he was paid less than a similarly situated white for comparable work. Pittman v. Hattisburg Mun. Separate School Dist., 644 F.2d 1071 (5th Cir. 1981); Payne v. General Motors Corp., (53 FEP Cases 475) (U.S.D.C. Kan. 1990). The typical unequal pay
case involves two employees, one black and one white, employed at the same time and performing essentially the same work. Pittman, 644 F.2d at 1074.
In this case, the evidence deomonstrated that Petitioner is a black male who was paid less than Tommy Flanders, a white coworker. Both employees were similarly situated as to their jobs when they were both in the parks and recreation unit. Given these facts, Petitioner has established a prima facie case of discrimination.
However, the Respondent articulated a legitimate, nondiscriminatory reason for the lesser pay of Petitioner and was not a cover-up for discrimination. Respondent's Compensation and Pay Plan, which was followed by the city manager, permitted Mr. Flanders to be demoted into the parks and recreation unit and keep his higher pay of sanitation foreman. This Pay Plan is race neutral, has worked to the advantage of blacks and white equally and was not used as a pretext for discrimination.
Mr. Steele also complained that he was discriminated against because Bob Gray and L. D. Marlowe, who had not been employed as long as Mr. Steele, had salaries greater than Mr. Steele's. Mr. Gray, however, is foreman of the sanitation workers and Mr. Marlowe supervises the street department. Both men have significantly greater duties and managerial responsibilities than Mr. Steele. These two individuals are clearly not similarly situated as Mr. Steele, and any disparity in their pay is understandable and does not violate Chapter 760, Florida Statutes. See, e.g., Pittman, 644 F.2d at 1074 (significant difference in job responsibilities negates crucial element).
More importantly, Mr. Steele has received every raise he was entitled to receive as well as all merit increases for which he was eligible. In addition, Mr. Steele received an extra merit increase during the early years of his employment. Given these facts, there is no evidence that Mr. Steele has been paid less because of his race, and no discrimination has been shown in relation to Mr. Steele's pay.
As indicated earlier, Petitioner also claims that he has been denied promotional opportunities on the basis of his race. In a failure to promote case, a Petitioner must establish a prima facie case by proving 1) he is a member of a protected class of persons; 2) he applied for a position for which he was qualified; and 3) the position was filled by a less qualified white or the position remained vacant and the employer continued to seek applicants even though Petitioner was qualified.
After a Petitioner has established a prima facie case, the Respondent must then articulate a legitimate reason why the Petitioner was rejected. To ultimately prevail, the Petitioner must then prove that the stated reason was merely a pretext for discrimination.
In the present case, Petitioner has failed to establish a prima facie case. While Petitioner is a member of a protected class of persons, he has failed to prove he applied for any position for which he was qualified. Although Petitioner testified he complained after Mr. Flanders' promotion in 1986, he admitted that he never sought the position or expressed any desire for the position. Consequently, the City cannot incur any liability for that decision. 7/ As for the 1987 vacancy filled by Mr. Gray, again, Mr. Steele did not seek this job or otherwise put the employer on notice that this might be a position he was interested in filling. In spite of this, Mr. Steele was considered for the job; however, Mr. Gray's relative qualifications were
greater. Mr. Gray had a managerial background, could work unsupervised, could better supervise others, exhibited greater initiative, and actively sought the position. In short, Mr. Steele failed to establish any promotion which he sought that was filled by a less qualified white.
Petitioner presented some evidence that promotions were filled by the city manager without giving incumbent employees an opportunity to seek the position. Assuming this is true, Petitioner failed to show how this adversely impacted on blacks. If Petitioner is challenging an employment practice under the adverse impact theory of discrimination, Petitioner must allege a specific employment practice utilized by the employer and show through statistical evidence that the employment practice disproportionately impacts on blacks. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
Petitioner produced no statistical evidence. Instead, Mr. Steele offered limited anecdotal evidence that blacks were relegated to the back of the sanitation trucks while whites received the better paying, more desirable jobs. Mr. Steele's own witnesses, however, demonstrated Mr. Steele's contentions to be untrue. John Barnes, a black male, testified he was hired into the sanitation department, however, Mr. Barnes is now a meter reader. Prior to becoming a meter reader, Mr. Barnes was in the fire department, and Mr. Barnes would be a fireman today except that he was unable to pass the state certification test. Mr. Barnes further testified that the City sent him to Texas to learn a new computer system to assist him as a meter reader. In short, Mr. Barnes has benefited from both promotional and educational opportunities offered by the City. Likewise, James Powell, a black male hired as a sanitation worker, was promoted to sign foreman in the street department and has not ridden on the back of a garbage truck since the first month he was employed with the City in 1969. In short, whatever deficiencies may exist in the City's promotional practices, the City's promotional practice is race neutral and works to the advantage or disadvantage of blacks and whites equally.
Finally, the evidence was clear that the City had a legitimate nondiscriminatory reason for not offerinng promotional opportunities to Mr. Steele. The reason was unrelated to race but centered around Mr. Steele's limited performance. The evidence did not show the City's reason to be pretextual.
That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein.
DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building
10 day of September, 1992.
1/ In 1991, the City conducted a study to determine its actual applicant pool for jobs that had been widely advertised in the community. The City randomly selected a two-month period of time when three positions (meter reader, billing clerk, and fireman) were open. Of the 167 total applicants, only 10, or 5.9% were black. Of the 15 applications for the fireman position, only one was black. Of the 98 applicants for the meter reader position, only three were black. The remaining six applicants sought the billing clerk position.
2/ Individuals may also get pay increases by promotion, job reclassification, and a pay range adjustment.
3/ Mr. Steele admitted his merit increases were overlooked because his anniversary date of employment was in October, the same month when cost-of- living raises were given.
4/ In 1990, the City began cost-of-living raises in December rather than in October.
5/ Mr. Barnes testified that the chief encouraged him to retake the test but for personal reasons he chose not to.
6/ Mr. Gray testified he had a high school degree and some college. In addition, he was a certified police officer and a welder and had extensive managerial experience prior to his promotion to sanitation foreman. After receiving the promotion, Mr. Gray initiated a recycling program for the City and actually designed the recycling equipment used by the City. He has not taken a vacation in two years and works Saturday if necessary.
7/ Although the merits are reached on this issue, it is clear that Mr. Steele's claim was based on an alleged discriminatory act that occurred in 1987.
Therefore, Mr. Steele's charge of discrimination was not filed within 180 days of the alleged discriminatory act. Section 760.10(10), Florida Statutes (1991) and should be dismissed on that basis alone.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6590
1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, both paragraphs numbered 20 and 21 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.
Mr. Howard B. Steele 708 East 16th Street
Margaret A. Jones, Clerk Commission on Human Relations
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.
