STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2052

)

CITY OF MONTICELLO, )

)

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 September 9, 1993, in Monticello, Florida.

APPEARANCES

For Petitioner: Melvin Adams, Pro Se

1417 Happy Street

Madison, Florida 32340

For Respondent: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

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 March 10, 1992, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that his employment as a truck driver with Respondent's sanitation department was terminated as a result of Petitioner's race.

On October 21, 1992, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On February 10, 1993, the Commission issued a Redetermination: No Cause.

Petitioner filed a Petition for Relief with the Commission on April 8, 1993. The Petition alleged that Respondent had committed an unlawful employment practice with respect to compensation, 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 four witnesses, including himself. Respondent presented the testimony of one witness and two exhibits. Neither party requested a transcript of the final hearing. Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner Melvin Adams, was employed by Respondent's street department in February of 1991. He later worked with Respondent's solid waste department until his employment termination on January 27, 1992.

   
   

2. In the course of his employment with the solid waste department, Petitioner drove Respondent's garbage truck. With some exceptions, Petitioner exhibited a good attitude and was usually a safe driver who got the job done. He had few disagreements with co-workers. Later Petitioner began to experience depression as a result of divorce proceedings and his job performance faltered.

   
   

3. Although the specific dates of the incidents are unspecified, Petitioner was involved in an occasional "fender bender" with the garbage truck. On one occasion while stopping at the "Chicken Delight" Restaurant, Petitioner forgot to set the air brakes on the truck. As a result, the truck rolled back and into a deep ditch. The incident occasioned damages totalling approximately

   $500, including repairs to the truck and a tow charge to remove the truck from the ditch.

   
   

4. Petitioner attended a city council meeting and expressed his opinion that he should be paid more. Petitioner's immediate supervisor, Respondent's city manager, disagreed with Petitioner. A main point of contention between the city manager and Petitioner was Petitioner's expressed strong belief that he was entitled to be paid the same amount as his predecessor driver on the garbage truck, $6.50 per hour.

   
   

5. Petitioner at one point during his employment expressed the opinion that Ron Reed, the garbage truck back-up driver who is also black, could not handle the job. The city manager listened, but did not replace Reed at that time.

   
   

6. On January 27, 1992, Petitioner reported to work at approximately 10

   a.m. and informed the city manager that he, Petitioner, did not feel well and could not work. Exasperated with Petitioner's attitude and job attendance, coupled with a strong personal belief that Petitioner was going to quit Respondent's employment soon, the city manager informed Petitioner that he was fired. At the time, Petitioner was paid $6.21 per hour. He had accrued 33 hours of "comp" time and 10 days of sick leave.

   
   

7. After terminating Petitioner's employment and finally acknowledging that Reed could not handle the position of garbage truck driver, the City Manager interviewed candidates for the vacancy pursuant to public notice. On February 5, 1992, he hired a white male for the position at the rate of $6.50 per hour. The new employee was the only candidate interviewed who could meet

   newly implemented federal requirements that the truck driver possess a commercial driver's license. This particular candidate would not accept the job for less compensation than $6.50 per hour.

   
   

8. Respondent employs 19 black employees and 31 white employees.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. 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.

    
    

11. 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).

    
    

12. 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).

    
    

13. 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.

    
    

14. In this case, Petitioner has not shown a prima facie case of employment discrimination which has not been rebutted by Respondent. Even assuming that Petitioner has met this burden, Petitioner has failed to show that Respondent's asserted reasons for terminating Petitioner's employment were 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 19th day of October, 1993, 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 19th day of October, 1993.

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.-3. Accepted in substance, though not verbatim.

1. Rejected, legal conclusion.

   
   

   Petitioner's Proposed Findings

   
   

   1.-4. Accepted and addressed in major part, although not verbatim.

2. Rejected, weight of the evidence.

3. Rejected, unsupported hearsay.

4. Accepted.

5. Accepted, but not verbatim.

6. Accepted with exception of reference to replacement driver's experience which is rejected as hearsay.

7. Rejected, subordinate to HO findings. 11.-13. Rejected, unnecessary.

14. Adopted by reference. 15.-16. Rejected, credibility.

COPIES FURNISHED:

Melvin Adams

1417 Happy Street

Madison, Florida 32340

Brian T. Hayes, Esquire

245 E. Washington Street Monticello, Florida 32344

Margaret Jones, Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 /Building F

Tallahassee, FL 32399-1925

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: 93-002052

Orders for Case No: 93-002052