STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO P. RIVERS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1557

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on April 15 and April 26-28, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Angelo Rivers, Pro Se

2794 Pennsylvania Avenue

Marianna, Florida 32446

For Respondent: Floyd A. Hennen

Attorney At Law Department of Agriculture

and Consumer Services

407 Calhoun Street

The Mayo Building, Room 515 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.

PRELIMINARY STATEMENT

On July 24, 1992, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that he was being treated disparately in his employment as a laboratory technician in Respondent's pesticide laboratory on the basis of race.

On March 4, 1993, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On March 18, 1993, Petitioner filed a Petition for Relief with the Commission. The Petition alleged that Respondent had committed an unlawful employment practice with respect to conditions and privileges of Petitioner's employment without a legal basis in violation of Sections 760.01-760.10, Florida Statutes.

Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of 16 witnesses, including himself, and 40 exhibits. Respondent presented the testimony of six witnesses and five exhibits.

A transcript of the final hearing was filed with the Division of Administrative Hearings on May 20, 1994. The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner Angelo Rivers, a black male, was employed in the formulation/confirmation unit of Respondent's pesticide laboratory located in Tallahassee, Florida from May 25, 1990, through August 20, 1992.

   
   

2. Marshall Gentry, a white male, provided overall supervision of the pesticide laboratory during Petitioner's employment. Petitioner's direct supervisor when he began work in the laboratory, however, was Wendy King, a female of oriental extraction. Subsequently, King was promoted and direct supervision of Petitioner was accomplished by Patty Lucas, a white female, who in turn was supervised by Wendy King.

   
   

3. In the course of his employment with Respondent's pesticide laboratory, Petitioner exhibited a good attitude and received good performance ratings from Respondent. Included among these ratings was a special evaluation related to the conclusion of Petitioner's probationary period following his promotion from laboratory technician I to laboratory technician II.

   
   

4. Two other laboratory technicians were employed in the pesticide laboratory. William Reeves, a black male, was employed as a laboratory technician IV in the formulation/confirmation unit of the laboratory. Elliott Healy, a white male, was employed as a laboratory technician III in the pesticide use monitoring unit of the laboratory. Both of these individuals were required to perform all the functions of a laboratory technician.

   
   

5. The formulation/confirmation unit is the consumer protection component of the pesticide laboratory. The unit's field staff surveys the marketplace and collects samples of pesticides that are in channels of trade for distribution and sale. Those samples are then analyzed by the unit to assure that the contents of the package match the label guarantee, thereby providing reasonable assurances to consumers that the products which are sampled contain the represented contents.

   
   

6. The pesticide use monitoring unit of the pesticide laboratory performs analyses associated with either groundwater sampling used to determine trace levels of pesticides or samples collected in association with determining misuse, property damage or human health damage connected with exposure to

   pesticides. Personnel in this unit are usually analyzing within the range of parts per billion, sometimes parts per million, and to prevent contamination the unit is separated from the formulation unit.

   
   

7. The pesticide laboratory contains three permanent types of employees: Chemists (including supervisors), clerical and laboratory technicians. Each of these have their own duties and responsibilities.

   
   

8. With regard to educational requirements, a chemist is required to have at least one college degree in the subject area of chemistry. Requirements for laboratory technicians are fairly minimal although a scientific education may play a part in initial assignment.

   
   

9. In accordance with normal practices, training was provided to Petitioner commensurate with his position as a laboratory technician II, inclusive of some formal training but generally on the job training.

   
   

10. William Reeves, the black laboratory technician IV, is presently in his junior year of undergraduate study in Entomology; Elliot Healy, the white laboratory technician III, received his degree in Entomology in 1979. Petitioner offered no evidence at final hearing regarding his education, except to state that he does not have a college degree.

    
    

11. There is no laboratory technician position above the laboratory technician IV position. Neither Petitioner, Reaves or Healy meet requirements for promotion to the position of chemist since they do not possess the required chemistry degree.

    
    

12. With regard to promotion within the laboratory technician family, no specific time periods are required to elapse before employees are granted a promotion. Such action depends upon other factors such as promotional opportunities.

    
    

13. Duties within the laboratory are assigned on the basis of the position (e.g., chemist II, laboratory technician III, etc.) and the area where the individual is assigned. Race is not a consideration in making duty assignments.

    
    

14. Twelve of Respondent's twenty-six laboratory technicians are white and fourteen are black. Laboratory technicians perform the duties required for their specific level without regard to the individual technician's race. The same is true of chemists in the laboratory. James Fort, a black chemist, performs the functions of a chemist.

    
    

15. There are occasions or special events that occur from time to time when news media or officials tour the facility and all personnel are expected to help with cleaning the pesticide laboratory. The laboratory technicians, however, are responsible for the laboratory at large. This responsibility does not include the normal maintenance chores such as changing light bulbs, fixing water fountains and leaking sinks or similar functions since these duties are normally performed by a maintenance and grounds crew who also take care of the exterior grounds of the facility.

    
    

16. The end product of the laboratory is the analytical result for which laboratory technicians and clerical staff provide support. Chemists or their supervisors perform the analytical chemistry work, quantitative analytical work and detailed analyses of samples, resulting in a laboratory report. Such work could require the use of nitrogen analyzers, gas chromatographs, high

    performance liquid chromatographs and other similar analytical instrumentation. Laboratory technicians perform the less technical tasks in the laboratory while clerical and support staff handle paperwork, correspondence and similar functions.

    
    

17. Non-black employees, whether laboratory technicians or not, performed physical and other tasks of which Petitioner has complained. Such non-black employees include Marshall Gentry, Wendy King, Patty Lucas, David Bevis, Michael Bentley, Elliot Healy and David Goldston. Healy and Goldston are laboratory technicians in the pesticide laboratory.

    
    

18. On January 22, 1992, Petitioner suffered a back injury in the course of assisting with the moving of a freezer at the laboratory. Numerous whites assisted in the moving the freezer, including Marshall Gentry, David Goldston, David Bevis, Michael Bentley, and three or four other unnamed white persons. None of the persons involved in moving the freezer had lifting belts.

    
    

19. Laboratory services, a section within Respondent's Feed, Seed and Fertilizer Laboratory Bureau, functions as the receiver for all feed, seed and fertilizer samples for Respondent's laboratories. Marshall Gentry eventually discovered that assistance of laboratory services personnel would be required to move the freezer. After obtaining that assistance, Gentry withdrew from the effort of moving the freezer and went about other tasks. Gentry mistakenly thought that Petitioner had also returned to other duties.

    
    

20. Petitioner did not report his injury to anyone on January 22, 1992, until after the movement of the freezer had been completed and disposal of packing materials accomplished. He was immediately taken to see a physician and an accident report was filed.

    
    

21. Following his injury, supervisory staff made periodic inquires regarding Petitioner's physical condition and made good faith efforts to comply with the limited information flowing to them which placed physical restrictions on Petitioner. Petitioner received doctor's orders dictating that he not lift more than a certain amount of weight. Over the course of ensuing months, these orders varied the amount of weight that Petitioner could be expected to lift with weight limits ranging from as low as 10 pounds to as much as 20 or 40 pounds upon occasion. Eventually, Petitioner was given doctor's orders that prescribed "light work" for Petitioner. Petitioner did not elaborate on the doctor's orders to his superiors. Petitioner's supervisors determined that his disability would be accommodated through a practice whereby Petitioner would simply tell his supervisor if Petitioner felt unable to perform a particular task. There is no evidence that Petitioner's race was considered by his supervisors in the assignment of tasks to him.

    
    

22. John Stupka, an Other Personal Services (OPS) employee with Respondent was assigned to the pesticide laboratory in April or May of 1991. He was not used, however, as a substitute for permanent laboratory technician employees although he did on occasion perform certain work that they would have performed if he had not been employed. He was never assigned to a position in any permanent employee class, including the laboratory technician class. Stupka was a white male premed student who was attending college in addition to his sporadic work with Respondent. He had no formal description of duties and was utilized as a temporary addition to the overall laboratory operation. Stupka's strong background in and interest in various chemical procedures permitted his utilization to a significant degree in this area, although he did not perform sophisticated chemical procedures. Generally, since his daily work schedule

    varied and lacked predictability as to when he would be present, the OPS employee was assigned long term duration projects such as cataloging information for a library of pesticide standards.

    
    

23. On or about June 30, 1992, Petitioner felt concerned about what he perceived to be discriminatory treatment in the assignment of job tasks received by him and, unknown to any of his supervisors, filed a complaint with the Florida Human Relations Commission. The evidence of record fails to indicate the disposition of this complaint. 1/ At any rate, supervisory personnel were unaware of the complaint when Gentry, King and Lucas met with Petitioner on July 10, 1992, to discuss what activities could be undertaken by Petitioner. The meeting was precipitated by Petitioner's note to Patty Lucas on July 8, 1992, stating he could not comply with an assignment given to him by Lucas. Lucas excused him from the assignment.

    
    

24. In the course of the meeting, his supervisors reiterated to Petitioner that he should perform only those tasks that he could perform and inform his supervisors of tasks that he could not perform. His supervisors anticipated that Petitioner would eventually recover and return to full duties. A functional capacity examination was not taken by Petitioner until August 25, 1992, due to cancellation of an earlier appointment.

    
    

25. On August 20, 1992, Petitioner submitted his voluntary resignation stating that he was unable to perform the duties of the laboratory technician II position. When Marshall Gentry learned of the resignation letter on that date, he approached Petitioner to give him the opportunity to rescind the resignation. Petitioner responded that he recognized that the laboratory had a "big job to do" and that they "need somebody else to do it."

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.

    
    

27. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes (1991). 2/

    
    

28. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the treatment accorded Petitioner. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason is pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

29. To establish a prima facie case, Petitioner must show he is a member of a protected class; that he was the subject of disparate treatment; and that he was replaced in the position from which he was separated by a member from a non-protected class. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1983), cert. denied, 464 U.S. 1018 (1984), Rehr'g denied, 465 U.S. 0154 (1984).

30. Petitioner is a member of a protected class and was replaced by a member of a non-protected class. Petitioner has not, however, presented direct evidence of racial discrimination on the part of Respondent in connection with his employment termination or that treatment accorded him differed from that accorded similarly situated white or non-protected employees.

    
    

31. Petitioner has failed to show that Respondent acted to constructively terminate Petitioner's employment on any basis, including any racial motivation. Even assuming that such a showing of constructive termination has been made, Respondent's explanation of any action related to Petitioner has not been shown to be pretextual.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 14th day of July, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 14th day of July, 1994.

ENDNOTES

1/ The initial Charge of Discrimination upon which the present proceeding is based bears a date of July 24, 1992.

2/ Section 13 of Chapter 92-177, Laws of Florida, provides that amendments to Section 760.10, Florida Statutes, contained in that act are applicable "only to conduct occurring on or after October 1, 1992" -- a date occurring after Petitioner's voluntary resignation from employment with Respondent.

APPENDIX

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

Respondent's Proposed Findings

1.-19. Accepted in substance, though not verbatim.

20. Rejected, cumulative.23. Accepted. 24.-25. Rejected, cumulative.

1. Accepted.

2. Rejected, cumulative. 28.-29. Accepted.

30. Rejected, cumulative. 31.-33. Accepted.

34. Rejected, relevance. 35.-42. Accepted.

43. Rejected, relevance.

44.-62. Adopted in substance, though not verbatim.

Petitioner's Proposed Findings

Proposed findings of Petitioner consisted of two and one half handwritten pages without numbered paragraphs. Generally, the submission reiterated Petitioner's legal position. However, the submittal has been reviewed and, to the extent possible, addressed by the foregoing findings of fact.

COPIES FURNISHED:

Angelo Rivers

2794 Pennsylvania Avenue

Marianna, Florida 32446

Floyd A. Hennen Attorney At Law

Department of Agriculture and Consumer Services

407 Calhoun Street

The Mayo Building, Room 515 Tallahassee, Florida 32301

Ms. Sharon Moultry Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee FL 32303-4149

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

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: 93-001557

Orders for Case No: 93-001557