STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1023

)

DAVIES CAN COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 15, 1992, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon Thomas, pro se For Respondent: Keith A. Ashmus, Esquire

Thompson, Hine and Flory

1100 National City Bank Building 629 Euclid Avenue

Cleveland, Ohio 44114-3070 STATEMENT OF THE ISSUE

The issue in this case is whether the Petition for Relief, charging the Respondent with race discrimination, should be granted.

PRELIMINARY STATEMENT

The record in this case reveals that the Petitioner, Vernon Thomas, filed with the Florida Commission on Human Relations (FCHR) a Charge of Discrimination against the Respondent, Davies Can Company, on April 23, 1991. The Charge of Discrimination alleged race discrimination in connection with (1) the Respondent's alleged failure to process the Petitioner's disability benefits claim and (2) the Respondent's failure to transfer the Petitioner upon closure of its Tampa plant. The Charge of Discrimination was assigned FCHR No. 91-4339.

The Charge of Discrimination was investigated, and on or about November 20, 1991, the FCHR issued a Notice of Determination: No Cause, i.e., a determination was made that there was no reasonable cause to believe that unlawful discrimination had occurred. It was discovered during the investigation that, contrary to the Petitioner's initial belief in filing the Charge of Discrimination, the Respondent had in fact hired a black hourly employee from its Tampa plant to work in one of its other plants when the Tampa plant closed.

The Petitioner then filed with the FCHR a Petition for Relief on December 9, 1991. The Petition for Relief also alleged race discrimination in connection with (1) the Respondent's alleged failure to process the Petitioner's disability benefits claim and (2), despite the facts discovered during the FCHR investigation, the Respondent's failure to transfer the Petitioner upon closure of its Tampa plant. On or about February 18, 1992, the FCHR forwarded the Petition for Relief to the Division of Administrative Hearings for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991).

At the final hearing, the Petitioner testified in his own behalf and called one adverse party witness and three of his own witnesses. The Respondent called one witness. No exhibits were introduced by either party during the hearing.

Neither party ordered the preparation of a transcript of the final hearing. 1/ Proposed recommended orders were required to be filed on or before April 27, 1992.

Instead of a proposed recommended order, the Petitioner submitted a written closing statement. The written closing statement included documentation that was not presented at the hearing and is not considered to be part of the evidence. One of the documents merely corroborrates undisputed testimony at final hearing (the Change of Status form); the other is purported to be evidence that the Petitioner raised additional charges of racial discrimination during the FCHR investigation. The additional purported charges were not contained in either the Charge of Discrimination or the Petition for Relief. In addition, they relate to alleged racial discrimination that would have occurred more than

180 days before the filing of the Charge of Discrimination. See Conclusion of Law 3, below.

FINDINGS OF FACT

1. The Petitioner, Vernon Thomas, who is black, began working at the Tampa plant of the Respondent, Davies Can Company, in 1971. By 1990, he was working as a mechanic in the production department.

   
   

2. In April, 1990, the Respondent's three-year labor union contract with the United Steelworkers of America covering its plant in Tampa, Florida, was due to expire. Knowing it was opening three new plants closer to its new sources of supply of raw material (tin plate), the Respondent was unsure how long it would continue to operate the Tampa plant and would only agree to extend the union contract for one year.

   
   

3. During quarterly profit-sharing meetings with the union and the Tampa plant employees, the Respondent kept the union and the employees apprised of the company's plans. All were aware of the distinct possibility that the Tampa plant would be closed at the expiration of the extended union contract in April, 1991.

   
   

4. Some employees at the Tampa plant, primarily supervisory and office personnel, were transferred to one of the new plants during the course of the year. When office personnel ceased employment, they were replaced by temporary employees. Other positions in the new plants were being filled by new employees who applied directly to the new plants.

   
   

5. At some point before the quarterly meeting on February 25, 1991, the Respondent made a decision to close the Tampa plant. At the quarterly meeting, the Respondent's director of employee relations, Joseph Frabotta, announced that

   the Tampa plant was being closed and that all Tampa employees were being permanently laid off. He stated that most would be laid off as of March 8, and the rest as of March 15, 1991. In response to questions regarding the availability of work at one of the Respondent's new plants, he also stated that he knew of no positions available at that time but that if anyone interested left an application for employment with him by the time he left Tampa on or about February 28, 1991, he would transmit the applications to the managers of those plants.

   
   

6. After the general announcement at the meeting on February 25, 1991, individual interviews were scheduled to discuss the particulars of the benefits due individual employees. The Petitioner's interview was on February 27, 1991. As the senior hourly employee at the Tampa plant, the Petitioner was told that he would work until March 15, 1991. He also was told the particulars of the benefits due him. Finally, he again was told that there were no positions at the new plants available for the Petitioner at that time but that, if he was interested, he should leave a completed application for employment with Frabotta by the time he left Tampa on or about February 28, 1991, and it would be transmitted to the managers of those plants.

   
   

7. During the Petitioner's individual interview on February 27, 1991, the Petitioner also raised the subject of a problem he was having with disability insurance benefits for a period of disability the Petitioner had suffered from approximately November 12, 1990, through January 1, 1991. The disability insurance policy provided by the Respondent for its eligible employees is provided through an insurance company, not by the Respondent itself directly. However, in order to insure proper follow up on behalf of its employees, the Respondent has a policy of having all claims forms mailed to its corporate offices in Solon, Ohio, for processing. During his period of disability, the Petitioner had asked the Tampa plant manager for the appropriate claims form. The plant manager said he would furnish the Petitioner one but never did. When the Petitioner returned to work on January 2, 1991, he again asked for the claims form. Again, the Petitioner was promised that one would be provided but none ever was provided. At his February 27, 1991, interview, the Petitioner reported all of this to Frabotta, whose investigation verified the Petitioner's information. Frabotta promptly arranged for the Petitioner's claims form to be submitted for processing, and in May, 1991, the Petitioner received the disability benefits to which he was due.

   
   

8. One other black employee was not given disability claims forms, for a disability in June, 1990, because the supervisor of the personnel office at the Tampa plant told the employee that he was not eligible. When the Petitioner told his fellow employee about his individual interview with Frabotta on February 27, 1991, the fellow employee told the Petitioner about his June, 1990, disability. The Petitioner recommended that the fellow employee ask Frabotta about it during his individual interview. Frabotta investigated the matter, and the benefits eventually were paid.

   
   

9. The Petitioner understands that, most of the time, disability benefits are paid within a two to three weeks after submission of a claim, and he is aware of some whites who timely received disability benefits.

   
   

10. With all the claims forms the Respondent's corporate headquarters processes for employees, errors occasionally are made, having nothing to do with race, and Frabotta has to become involved in correcting errors, just as he did in the case of the Petitioner and his fellow black employee.

11. The Petitioner did not prove that the delay he and his fellow black employee experienced in receiving disability benefits was the result of racial discrimination.

    
    

12. The Petitioner did not give Frabotta an application for employment with one of the new plants before Frabotta left Tampa to return to Ohio. Instead, he mailed an application on or about March 25, which Frabotta did not receive until early April, 1991.

    
    

13. On March 15, 1991, the Petitioner was asked to work one more day to prepare the equipment for shipment the following day to the new plant in Georgia. His last day at work was March 16, 1991.

    
    

14. Soon after his last day at work, the Petitioner came under the belief that white hourly employees from the Tampa plant had been transferred to the new plant in Georgia. As the senior hourly employee at the Tampa plant, the Petitioner believed he was entitled to the work under the union contract. But the union contract did not apply at any plant other than Tampa, and it expired in April, 1991. The employees hired at the Georgia plant had given applications to Frabotta before February 28, 1991, and were hired by the Georgia plant manager when a need arose for their services on or about March 18, 1991, at a point in time before the Petitioner submitted his application. In addition to the two white hourly employees, a black hourly employee also was hired in that fashion at the Georgia plant.

    
    

15. Later, the Petitioner learned that two white hourly employees were continued on the payroll for a certain period of time. The Petitioner believed that, if any work was available for hourly employees in Tampa, he should have gotten it under the terms of the union contract since he had seniority. But there was another provision in the union contract, known as the "super seniority" provision, under which the president and chief steward of the local union were to be kept on the payroll in the event of a reduction in the work force at the Tampa plant. These union officials were white. The local union insisted that these two people be kept on the payroll after March 16, 1991. (They were not paid after the expiration of the extended union contract in April, 1991.

    
    

    CONCLUSIONS OF LAW

    
    

16. Section 760.10(1), Fla. Stat. (1989), makes it illegal to discharge or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race (among other things).

    
    

17. The Petitioner's evidence fell far short of proving the charge of racial discrimination either in connection with the Respondent's alleged failure to process the Petitioner's disability benefits claim or in connection with the Petitioner's failure to transfer the Petitioner upon closing its Tampa plant.

    
    

    As for the former charge, the Petitioner's evidence was insufficent to prove that the Respondent processed white employees' disability benefits form but did not process black employees' forms. At best, the Petitioner proved that one of the Respondent's employees neglected to process forms in a timely fashion for the Petitioner and one other black employee and that the Petitioner was aware of one or two white employees whose forms were processed. The Petitioner's evidence did not make out a prima facie case of unlawful discrimination. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

    1817, 36 L.Ed.2d 668 (1973)(prima facie showing of racial discrimination requires evidence of disparate treatment on the basis of race); Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir. 1980), cert. den., 449 U.S. 879 (1980)(same); Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-441 (3d Cir.

    1980)(same). 2/

    
    

    Assuming that there had been evidence of disparate treatment on the basis of race, the Respondent produced evidence that errors, having nothing to do with race, were the reasons the disability claims forms were not processed in a timely fashion for the Petitioner and his fellow black employee. This would have returned the burden to the Petitioner to prove that the Respondent's alleged legitimate, nondiscriminatory reasons were mere pretexts and that an illegal, discriminatory reason motivated the Respondent. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). As reflected in the Findings of Fact, the Petitioner's evidence fell far short of this burden of proof.

    
    

    As for the latter charge, the clear evidence was that the Petitioner was treated like any other Tampa plant hourly employee in connection with the closing of the plant, that he was given the same opportunity as the others to apply for a job in one of the Respondent's other plants, that the Petitioner did not timely apply for a job in one of the new plants, that the Respondent in fact hired one black hourly employee (along with two white hourly employees) at the Georgia plant, that all three who were hired had timely applied, and that whites (at least one of whom timely applied for a transfer) also were not hired at any of the other plants. Indeed, the Petitioner became aware of these facts during the FCHR investigation but still filed his Petition for Relief alleged racial discrimination in connection with the Tampa plant closing.

    
    

    The Petitioner's case betrayed a fundamental lack of comprehension that, under Section 760.10(1), the Petitioner had to prove not only disparate treatment but also a race basis for it. Cf. Dept. of Corrections v. Chandler,

    582 So. 2d 1183 (Fla. 1st DCA 1991) (the evidence suggested that the petitioner may have been passed over for a promotion because of the personal friendship of one of his competitors for the position with an influential member of the interview team, not because of racial discrimination). Clearly, his evidence made no such connection. 3/ To the contrary, the Petitioner seemed to be trying a claim that the Respondent had violated the terms of the labor union contract for the Tampa plant. Consequently, the Petitioner did not even make out a prima facie case of unlawful discrimination. Cf. McDonnell Douglas Corp.

    v. Green, supra ; Green v. Armstrong Rubber Co., supra; Jackson v. U.S. Steel Corp., supra.

    
    

    Assuming that there had been evidence of disparate treatment on the basis of race, the Respondent produced evidence that it had legitimate, nondiscriminatory reasons for its treatment of the Petitioner. This would have returned the burden to the Petitioner to prove that the Respondent's alleged legitimate, nondiscriminatory reasons were mere pretexts and that an illegal, discriminatory reason motivated the Respondent. Texas Dept. of Community Affairs v. Burdine, supra. As reflected in the Findings of Fact, the Petitioner's evidence fell far short of this burden of proof.

    
    

18. Upon attaining some understanding, during the course of the final hearing, of the limited purpose of a proceeding under Section 760.10, Fla. Stat. (1991), the Petitioner attempted to present evidence of additional alleged incidents of racial discrimination. Although the Petitioner claims that the additional charges were investigated by the FCHR, they are not contained in

either the Charge of Discrimination or the Petition for Relief. In addition, they relate to alleged incidents that would have occurred more that 180 days before the filing of the Charge of Discrimination. Under Section 760.10(10), those alleged incidents cannot properly form the basis for relief in this proceeding. Section 760.10(10) provides: "Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged violation "

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case.

RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992.

ENDNOTES

1/ In his posthearing written closing statement, the Petitioner requested "a copy of the hearing that was held on April 15th '91 Tampa, Florida." It is presumed that the Petitioner was referring to the final hearing on April 15, 1992. If the Petitioner desires a copy of the transcript of the final hearing, he would have to make arrangements, at his cost, directly with the court reporter, Darlene C. Yetta, Deputy Official Court Reporter, Hillsborough County Courthouse, for preparation of the transcript.

2/ Because Florida's Human Rights Act of 1964 is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, Florida courts have looked to interpretive federal case law for guidance in determining whether an unlawful employment practice has occurred. School Bd. of Leon County v. Hargis, 400 So. 2d 103, 108 & n.2 (Fla. 1st DCA 1981).

3/ In many respects, the Petitioner did not even prove disparate treatment on any basis, much less on a race basis. For example, the Petitioner was given the same information about the plant closing as other hourly employees and was given the same opportunity to apply for a job in one of the Respondent's other plants.

COPIES FURNISHED:

Vernon Thomas

6002 20th Avenue South Tampa, Florida 33619

Keith A. Ashmus, Esquire Thompson, Hine and Flory

1100 National City Bank Building 629 Euclid Avenue

Cleveland, Ohio 44114-3070

Ronald M. McElrath Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones Clerk

Human Relations Commission

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 TO THE FLORIDA COMMISSION ON HUMAN RELATIONS WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE FLORIDA COMMISSION ON HUMAN RELATIONS CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-001023

Orders for Case No: 92-001023