STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VEERASAMMY MANGALI, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0320

) FCHR NO. 92-0558

PORTION-TROL FOODS, INC, )

d/b/a MOTHER BUTLER PIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on July 27, 1993, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Veerasammy Mangali (pro se)

5642 Pendleton Drive

Orlando, Florida 32839

For Respondent: William Curphey, Esquire

205 Brush Street Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations in November, 1991. Following an investigation, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice in November, 1992, and this matter was referred to the Division of Administrative Hearings for a hearing de novo, and the submission of a Recommended Order to the Commission on January 20, 1993. Respondent filed its Answer and Affirmative Defenses on March 1, 1993. Following discovery and various prehearing motions, a formal hearing was conducted in Orlando, Florida, on July 27, 1993.

At the hearing, Petitioner testified in his own behalf, and one exhibit (a composite exhibit) was admitted in evidence. Following the close of the evidence by Petitioner, Respondent moved for the entry of a Summary Recommended Order of Dismissal. The Hearing Officer reserved ruling on the motion. Respondent called

seven witnesses, and offered seven exhibits into evidence. Upon conclusion of the testimony, the parties made closing argument, and were provided the opportunity to submit proposed findings of fact, conclusions of law and legal argument within ten days of the filing of the transcript of the hearing. On July 31, 1993, Petitioner sought to file additional documents in the record for the purpose of establishing additional facts regarding the corporate status of the Respondent. Said documents were not served on Respondent, and are not timely filed. Therefore, the documents are not admitted in evidence. The transcript was filed on August 21, 1993. Respondent sought permission for an extension of time to file proposed findings of fact and conclusions of law, which was granted. Petitioner has not filed proposed findings as of the preparation of this Order. Respondent filed its proposed findings on September 20, 1993. The proposed findings have been given careful consideration, and are addressed in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended.

   
   

2. Petitioner, a black male, was hired by Respondent on June 26, 1990.

   
   

3. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991.

   
   

4. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants.

   
   

5. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies.

   
   

6. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants.

   
   

7. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants.

   
   

8. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook.

   
   

9. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991.

10. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision.

    
    

11. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances.

    
    

12. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore.

    
    

13. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner.

    
    

14. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately."

    
    

15. Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies.

    
    

16. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away.

1. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant.

   
   

2. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone.

3. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct.

   Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings.

   
   

4. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race.

   
   

5. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants.

   
   

6. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes.

   
   

7. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies.

   
   

8. Petitioner offered testimony concerning his damages.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 60Q-8.016(1), Florida Administrative Code.

   
   

10. The State of Florida, under the legislative scheme contained in Florida Statutes Chapter 760, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964 as amended 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a).

    
    

11. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the very recent case of St. Mary's Honor Center v. Hicks,

    U.S. ,113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model.

    Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination.

    
    

12. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. The Petitioner must establish that:

    
    

    1. The Petitioner is black;

    2. The employee is qualified for the position;

    3. The employee was subject to an adverse employment decision (he was terminated from that position);

    4. To demonstrate discrimination there must be shown that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases

       139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

13. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

14. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only to produce admissible evidence which would allow the trier of fact "to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

15. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

16. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).

17. In the case sub judice, the Petitioner has established that he is an African American, a member of a protected class, and was qualified for the position. The Petitioner has also established that he was subjected to an adverse employment decision by his termination from employment. However, the Plaintiff failed to set forth any evidence to prove that his discharge was in any wise prompted by his race. Therefore, Petitioner has failed to come forward with sufficient evidence to meet his initial burden of proof on the issue of racial discrimination.

    
    

18. At the close of Petitioner's case in chief, Respondent made a motion to dismiss. The Hearing Officer reserved ruling on the motion. Petitioner has not established a prima facie case, and he has introduced no evidence showing that Respondent has discriminated against Petitioner with regard to his termination. The Florida Commission on Human Relations has held under similar circumstances that a petitioner failed to establish a prima facie case. In Young v. SCM Organic Chemicals, FCHR Order No. 89-015 (1989), the Commission adopted the hearing officer's facts and conclusions of law which held that the petitioner in Young had failed to establish a prima facie case of discrimination. Further, even assuming petitioner had established a prima facie case, the hearing officer in Young held, and the Commission adopted his finding, that the petitioner failed to show by a preponderance of the evidence he was treated differently than other similarly situated employees who were outside the protected class. Id. at p. 9 of the hearing officer's recommended order. Further, the hearing officer in Young held, and the Commission adopted his finding, that petitioner presented no credible evidence which showed that other employees were treated differently than petitioner. Id. Here, the Petitioner has failed to establish that he was replaced by a non-minority person, or that he was treated differently than other similarly situated employees.

    
    

19. However, assuming arguendo that Petitioner did prove a prima facie case of racial discrimination, the burden of presentation of proof in Title VII discriminatory treatment cases then shifts to the Respondent/Employer to articulate a reason for the termination of the individual that was not racially motivated. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas presumption places upon the Respondent/Employer the burden of articulating an explanation to rebut the prima facie case, i.e., of producing evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Burdine, 450 U.S. at 254.

    
    

20. Respondent, Portion-Trol Foods, has introduced substantial, credible evidence of legitimate, nondiscriminatory reasons for discharging Petitioner. Petitioner was given repeated warnings regarding his conduct and demeanor with customers to whom he was making deliveries. He was warned by at least two levels of supervision. It was clearly indicated to Petitioner that a future violation could, and most likely would, result in his termination. Petitioner knew that failure to conform to that standard of behavior would result in his termination. Nonetheless, he repeatedly persisted in being rude to Denny's employees. This conduct resulted in his termination.

    
    

21. Once Respondent has articulated a legitimate, nondiscriminatory reason for the adverse employment action taken, the burden of production has been satisfied, and the presumption raised by a prima facie case is rebutted. Burdine, 45 U.S. at 255. Petitioner was given a full opportunity to demonstrate, through the presentation of his own case and through the cross- examination of Respondent's witnesses, that the reason advanced by Portion-Trol for his termination was pretextual. He did not do so. Petitioner retains the

    ultimate burden of persuading the trier of fact that he had been the victim of race discrimination. Petitioner has not carried this burden. St. Mary's Honor Center v. Hicks, U.S., 113 S.Ct. 2742 (1993).

    
    

22. Respondent has advanced legitimate, nondiscriminatory business reasons for its termination of Petitioner. Petitioner offered no evidence in rebuttal. Nor through cross-examination was Petitioner able to prove that Respondent's stated reason was pretextual. However, even if it was determined that Respondent's reason was false, Petitioner has still failed to come forward with any facts to support even a bare prima facie case of racial discrimination, and therefore has not carried his ultimate burden of persuasion. Hicks, supra.

    
    

23. Petitioner was warned to cease being rude and abrasive toward Respondent's customers. He was provided both verbal and written counseling. Accordingly, Respondent's managers took appropriate action against Petitioner based on the witnesses' statements revealing that Petitioner was being rude and abrasive toward Respondent's customers, and did not discharge Petitioner due to his race.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for

Relief.

DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 12th day of October, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent:

Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16,

18, 19(in part), 21, 22, 24, 25

Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23

COPIES FURNISHED:

Veerasammy Mangali (pro se) 5642 Pendleton Drive

Orlando, Florida 32839

William Curphey, Esquire

205 Brush Street Tampa, Florida 33601

Dana Baird General Counsel

Florida Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

VEERASANMY MANGALI,

Petitioner, EEOC Case No. 15F920002 FCHR Case No. 92-0558

vs.

DOAH Case No. 93-0320

PORTION-TROL FOODS, INC., FCHR Order No. 94-047 d/b/a MOTHER BUTLER PIES,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

1. Panel of Commissioners

   
   

   The following three Commissioners participated in the disposition of this matter:

   
   

   Commissioner Sandra Garcia Panel Chairperson;

   Commissioner Elena Flom, and Commissioner Geraldine Thompson.

   
   

2. Appearances For Petitioner Veerasammy Mangali:

   Veerasammy Mangali, pro se 5642 Pendleton Drive

   Orlando, Florida 32839

   For Respondent Portion-Trol Foods, Inc., d/b/a Mother Butler Pies: William Curphy, Esquire

   205 Brush Street Tampa, Florida 33601

3. Preliminary Matters

   
   

   Veerasammy Mangali, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, Respondent herein, unlawfully discriminated against him on the basis of race (black).

   
   

   In accordance with the Commission's rules, the allegations of discrimination were investigated and a Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred.

   
   

   Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

   
   

   A formal administrative hearing was held in Fort Lauderdale, Florida before DOAH hearing officer Daniel M. Kilbride, who issued a Recommended Order of dismissal.

   
   

   Pursuant to notice, public deliberations were held in Orlando, Florida before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

   
   

4. Findings of Facts

   
   

   The DOAH hearing officer's findings of fact are supported by competent substantial evidence. We adopt the hearing officer's findings of fact.

   
   

5. Conclusions of Law

   
   

   We expressly reject the subordinate, intermediate legal conclusion that Petitioner did not establish a prima facie case of discrimination within the requirements of the McDonnell Douglas evidentiary analysis. The hearing officer's overall legal conclusion, however, is correct, i.e., that Petitioner retains the burden of proof and that Petitioner's proof is insufficient to establish the occurrence of unlawful discrimination.

   
   

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

   
   

6. Dismissal

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of his right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P.

9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Sandra Garcia, Panel Chairperson;

Commissioner Elena Flom, and Commissioner Geraldine Thompson.

FILED this 3rd day of June 1994, in Tallahassee, Florida.

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Boulevard, Suite 2700 - 27th Floor, Miami, Florida 33131.

Copies furnished to:

Veerasammy Mangali, pro se 5642 Pendleton Drive

Orlando, Florida 32839

William Curphy, Esquire

205 Brush Street Tampa, Florida 33601

Daniel M. Kilbride, DOAH Hearing Officer Harden King, FCHR Legal Advisor

Docket for Case No: 93-000320

Orders for Case No: 93-000320