STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA BOATWRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2647

)

PPC PRODUCTS CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in the above-styled case on September 23, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Sandra Boatwright, Pro Se

390 West 33rd Street

Riviera Beach, Florida 33404

For Respondent: Robert Diffenderfer

Messer, Vickers, Caparello, Madsen, Lewis & Metz, P. A.

2000 Palm Beach Lakes Boulevard Suite 900

West Palm Beach, Florida 33409 STATEMENT OF THE ISSUES

The issues for consideration in this hearing are whether Respondent discriminated against Petitioner on the basis of race in the terms and conditions of her employment, in failure to promote her, and in transferring her and whether Respondent dismissed her as retaliation for filing a discrimination complaint against Respondent.

PRELIMINARY MATTERS

On March 14, 1990, Petitioner filed a discrimination complaint against Powell Physics Corporation, alleging it had discriminated against her on the basis of race and as retaliation for complaining of unfair treatment. On September 28, 1992, the Equal Opportunity Employment Commission entered its Determination of no cause as to Petitioner's previously filed Complaint of Discrimination against the Respondent. On April 8, 1993, the Human Relations Commission entered a Redetermination: No Cause. On May 6, 1993, Petitioner filed a Petition for Relief with the Human Relations Commission based on the same alleged discrimination, and on May 12, 1993, the matter was transferred to the Division of Administration Hearings for the appointment of a Hearing

Officer. This matter was originally assigned to Hearing Officer Michael Parrish, but the hearing was held before the undersigned to whom the case was transferred in the interim.

Respondent filed a Motion to Change Case Style to reflect the correct name of Respondent, PPC Products Corporation. The motion was granted.

Petitioner's exhibits 1-18 were entered into evidence. Petitioner called nine witnesses. Respondent called four witnesses. Respondent's exhibits 1-3 and 5-29 were entered into evidence.

Respondent offered its Requests for Admissions, minus exhibits, as Exhibit

1. Ruling on the admission of Respondent's exhibit 30 was reserved until the issuance of the recommended order. On August 19, 1993, Respondent served Petitioner with a request for production of documents, a request for admissions and interrogatories. Petitioner responded to the interrogatories and to the request for production, but did not respond to the request for admissions. At the hearing it was evident that the Petitioner, who was unrepresented by counsel, did not understand the request for admissions and thought that she had complied with all Respondent's requests when she produced documents and answered the interrogatories. Respondent sought to rely on the failure to respond to the admissions as a conclusive admission of the statements requested to be admitted. At the hearing Petitioner responded to Requests A through D. Respondent withdrew Requests E and F. Based on Adams v. Freel, 409 So.2d 1176 (Fla. 1st DCA 1982), Petitioner's untimely responses to the requests for admissions stand and her failure to make a timely response does not conclusively establish the facts asserted in the requests for admissions. Respondent was not prejudiced by allowing Petitioner to respond to the requests for admissions at hearing.

   
   

   On November 5, 1993, Petitioner filed a pleading separate from her proposed recommended order. The pleading indicated that she was filing suit against Respondent, pled certain facts, and asked for $75,000 in damages. Additionally Petitioner filed a copy of a letter dated September 9, 1993, to Counsel for Respondent which appears to be a demand letter for $74,836.00 as settlement of her complaint against Respondent. On November 22, Respondent filed a Motion to Strike both documents.

   
   

   Respondent's Motion to Strike is GRANTED. The untitled pleading is improper. The factual allegations were not part of Petitioner's findings of fact. If it is an attempt to present further testimony, it is improper because it is after the closing of the hearing. The letter to Counsel for Respondent is improper for the same reasons.

   
   

   The parties agreed to file proposed recommended orders within thirty days of the date of the filing of the transcript. The transcript was filed on October 8, 1993. On November 5, 1993, Petitioner filed proposed findings of fact and argument. Respondent filed a proposed recommended order on November 8, 1993.

   The parties' proposed findings of fact are ruled upon in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts.

   2. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations.

      
      

   3. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department.

      
      

   4. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution.

      
      

   5. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it.

      
      

   6. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor.

      
      

   7. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book.

      
      

   8. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change.

      
      

   9. Race had nothing to do with the requirement that a marking logbook be maintained.

      
      

   10. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC.

       
       

   11. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that

       position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer.

       
       

   12. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut.

       
       

   13. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer.

       
       

   14. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer.

       
       

   15. Ms. Boatwright's transfer from production to quality was not involuntary.

       
       

   16. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams.

       
       

   17. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase.

       
       

   18. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities.

       
       

   19. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to

       contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening.

       
       

   20. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance.

       
       

   21. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve.

       
       

   22. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988.

       
       

   23. Race played no part in Petitioner's lack of promotion in marking and production.

       
       

   24. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation.

       
       

   25. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County.

       
       

   26. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance.

       
       

   27. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager.

       
       

   28. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task.

       
       

   29. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the

       employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority.

       
       

   30. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own.

       
       

   31. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early.

       
       

   32. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did.

       
       

   33. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated.

       
       

   34. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey.

       
       

   35. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day.

       
       

   36. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended.

       
       

   37. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated.

   38. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   40. Section 760.10(1) and (7), Florida Statutes, makes it an unlawful employment practice to:

       
       

       (1a) . . . discharge or . . . otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color . . . .

       and

       (7a) . . . discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge . . . under this section.

       
       

   41. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq., (Title VII). School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981).

       As such, federal precedent construing the similar provisions in Title VII should be accorded great deference. Pasco County School Board v. Public Employee's Relation Commission, 353 So. 2d 108, 116, (Fla. 1st DCA 1978); Simmons v.

       Eastern Airlines, Inc., 10 FALR 6244, 6250 (FCHR 1988).

       
       

   42. The United States Supreme Court set forth the procedure essential for establishing claims of racial discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973) and clarified the burden of proof in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately

       presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been the victim of intentional discrimination. Id. 450 U.S. at 252-57, 101 S.Ct. at 1093-95, 67 L.Ed 2d at 215-17.

       
       

   43. To present a prima facie case, the Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. 450 U.S. at 254, and 101 S.Ct. at 1094. The prima facie case serves to eliminate the most common nondiscriminatory reasons for the petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866 N. 44 (1977).

       
       

   44. Ms. Boatwright did not present facts which would create an inference of discrimination. The facts presented show that she made a request for a transfer, which was granted to accommodate her because of her long-term employment with PPC. She later changed her mind, and Ms. Hill refused to undo the transfer. No evidence was presented to show that the refusal to reverse the transfer was based on racial discrimination.

       
       

   45. Although Ms. Boatwright alleged that she had been subjected to harsh treatment and had received increased scrutiny of her work while non-black coworkers did not, she did not present evidence to show that she was treated differently than her non-black coworkers. The evidence did show that all the employees in marking were asked to use the engineering logbook. Ms. Boatwright and Mr. Storz may not have enjoyed an amiable working relationship; however, no evidence was presented that Mr. Storz treated her differently from any other employee, black or non-black.

       
       

   46. Having judged the credibility of the witnesses and found that Mr. Gause did not make a statement to Ms. Boatwright that he treated whites better than blacks, Ms. Boatwright has not made a prima facie case that Mr. Gause discriminated against Ms. Boatwright based on race.

       
       

   47. In order to establish a prima facie case of discrimination in a failure to promote case, the employee must demonstrate

       
       

       that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff's request for promotion was denied.

       
       

       Department of Corrections v. Chandler, 582 So.2d 1183, 1186 (Fla. 1st DCA 1991),

       citing Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981).

       
       

   48. Ms. Boatwright has failed to establish a prima facie case of discrimination by failure to promote. Ms. Boatwright is a member of a protected class. No evidence was presented that Ms. Boatwright applied for a promotion. The greater weight of the evidence showed that she was not qualified for a supervisory position because of her inability to deal with personnel issues. No competent evidence was shown that there were promotions from line leaders to supervisors during the years 1984 through 1990.

   49. A prima facie case of discriminatory discharge is proved by showing that the plaintiff is a member of a protected class, she was qualified for the position, she was discharged and was replaced by a person outside the protected class. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475-6 (FCHR 1985).

       
       

   50. Ms. Boatwright failed to establish a prima facie case of discriminatory discharge. She is a member of a protected class, was qualified to perform the work in the Lorlin testing area, and was discharged. No evidence was presented to show that she was replaced by a person outside the protected class. Additionally, Ms. Boatwright, a member of protected class, and Mr. Matthey, a member of a nonprotected class, were discharged at the same time for the same reasons and based on the same circumstances.

       
       

   51. In order to establish a prima facie case of retaliatory discharge, the Petitioner must prove (1) that she was engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that there was a causal connection between her participation and the protected activity and the adverse employment action. See Tipton v. Canadian Imperial Bank, 872 F.2d 1491 (11th Cir. 1989); Simmons v. Camden County Board of Education, 757 F.2d 1187 (11th Cir. 1985).

       
       

   52. Ms. Boatwright failed to establish a prima facie case of retaliatory discharge. She filed a discrimination complaint which is a protected activity. Her dismissal was an adverse employment action. There is no causal connection between her discharge and the filing of the discrimination complaint. Mr. Mills who made the recommendation to discharge Ms. Boatwright was not even aware that Ms. Boatwright had filed a discrimination charge when he made the recommendation to fire her. No evidence was shown that there had been discussions of retaliation because she filed a discrimination complaint.

       
       

   53. Even if Ms. Boatwright had proven a prima facie case for discrimination or retaliation, PPC presented sufficient evidence to demonstrate that PPC's actions toward Ms. Boatwright were legitimate and nondiscriminatory. The requirement to use the logbook was a common request from the engineering department. The use of the logbook was necessary to isolate the reason for the failure of the markings. All the employees in the marking section were required to use the logbook.

       
       

   54. Ms. Boatwright's transfer from production to quality was initiated at her own request. The greater weight of the evidence showed that she had talked to Ms. Williams and then requested a transfer via Mr. Gause. Although such transfers were not common at PPC, the management processed the transfer request to accommodate Ms. Boatwright. When Ms. Boatwright changed her mind after the steps to bring about the transfer had been set in motion, Ms. Hill justifiably refused to reverse the transfer. Too many changes had occurred to undo the transfer process.

       
       

   55. Ms. Boatwright was discharged in May 1990, for leaving work early without permission and failing to follow a supervisor's instructions. In April 1990, a white female had been fired for leaving work early without permission. At the time of Ms. Boatwright's discharge, Mr. Matthey, a white male was also discharged for leaving work early without permission and failing to follow a supervisor's instructions. The statistics kept by PPC as part of it EEOC reporting requirements showed that during the period October 1988 through September 1990, more Caucasians than blacks were discharged.

   56. Ms. Hill's decision to discharge Ms. Boatwright was based on her and Mr. Mills' belief that Ms. Boatwright failed to follow Mr. Mills' instructions to work in another area of the plant and that she left early without permission. Ms. Boatwright's discharge was not based on either racial discrimination or retaliation.

       
       

   57. It appeared by her testimony at hearing that one of her biggest complaints was not being given a warning for being insubordinate or leaving early. The employee handbook clearly advised the employees that an employee could be discharged immediately for insubordination. Ms. Boatwright felt that she should have had an opportunity to discuss circumstances leading to her discharge prior to her being fired. Based on the testimony at the hearing it was obvious that Ms. Boatwright, Mr. Matthey, and Ms. Rouse did not clearly understand that Mr. Mills was in charge when Ms. Williams was absent. It appeared from the testimony that had Mr. Mills had a different management style the situation could have been cleared up by the use of better communications. However, the lack of discussion with Ms. Boatwright was not due to either racial discrimination or retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has

failed to prove that Respondent committed an unlawful employment practice

against Petitioner.

DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 27th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1 - Accepted in substance.

2. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence.

3. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence.

4. Paragraphs 5 and 6 - Accepted.

5. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors.

6. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present.

7. Paragraph 9 - Accepted.

8. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order.

9. Paragraphs 11 and 12 - Rejected as not supported by the evidence.

Respondent's Proposed Findings of Fact.

1. Paragraph 1 - Accepted.

2. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74.

3. Paragraphs 3 and 4 - Accepted in substance.

4. Paragraph 5 - Rejected as unnecessary detail.

5. Paragraph 6 - Accepted.

6. Paragraphs 7 and 8 - Rejected as unnecessary detail.

7. Paragraph 9 - Accepted.

8. Paragraph 10 - Rejected as unnecessary detail.

9. Paragraphs 11, 12, and 13 - Accepted in substance.

10. Paragraph 14 - Accepted in substance.

11. Paragraph 15 - Accepted in substance.

1. Paragraph 16 - Accepted in substance.

2. Paragraph 17 -Accepted.

3. Paragraphs 18-22 - Accepted in substance.

4. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence.

5. Paragraph 24 - Accepted.

6. Paragraph 25 - Accepted in substance.

7. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance.

8. Paragraphs 27, and 28 - Accepted in substance.

9. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance.

10. Paragraph 30 - Accepted in substance.

11. Paragraph 31 - Rejected as unnecessary detail.

12. Paragraphs 32, 33, 34, 35 - Accepted in substance.

13. Paragraph 36 - Rejected as unnecessary detail.

14. Paragraphs 37, 38, 39 and 40 - Accepted in substance.

15. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance.

16. Paragraph 42 - Accepted in substance.

17. Paragraph 43 - Accepted.

18. Paragraphs 44, 45, 46 and 47 - Accepted in substance.

19. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance.

20. Paragraphs 49, 50, 51. and 52 - Accepted in substance.

21. Paragraph 53 - Accepted

22. Paragraph 54 - Accepted in substance.

23. Paragraphs 55, 56, and 57 - Rejected as subordinate.

24. Paragraph 58 - Accepted in substance.

25. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance.

26. Paragraph 60 - Accepted.

27. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance.

28. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance.

29. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area.

30. Paragraphs 68 and 69 - Accepted in substance.

31. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail.

32. Paragraphs 71 and 72 - Accepted in substance.

33. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance.

34. Paragraph 74 - Accepted in substance.

35. Paragraph 75 - Rejected as subordinate and unnecessary detail.

36. Paragraph 76 - Accepted in substance.

37. Paragraphs 77 and 78 - Rejected as unnecessary detail.

38. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail.

39. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order.

40. Paragraph 81 - Accepted.

41. Paragraph 82 - Rejected as unnecessary detail.

42. Paragraph 83 - Accepted.

43. Paragraphs 84 and 85 - Rejected as unnecessary detail.

44. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order.

45. Paragraph 88 - Accepted in substance.

46. Paragraph 89 - Accepted.

47. Paragraph 90 - Accepted in substance.

48. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order.

49. Paragraph 92 - Accepted in substance.

50. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order.

51. Paragraph 95 - Accepted.

52. Paragraph 96 - Accepted in substance.

53. Paragraph 97 - Accepted.

54. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact

COPIES FURNISHED:

Ms. Sandra Boatwright

390 West 33rd Street

Riviera Beach, Florida 33404-33036

Terry E. Lewis, Esquire

Robert P. Diffenderfer, Esquire Suite 900

2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

Florida Commission on Human Relations

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 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 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.

================================================================= AGENCY ORDER REMANDING PETITION FOR RELIEF

FROM AN UNLAWFUL EMPLOYMENT PRACTICE

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

SANDRA BOATWRIGHT

Petitioner, EEOC Case No. N/A FCHR Case No. 90-4009

v. DOAH Case No. 93-2647

FCHR Order No. 95-009

PPC PRODUCTS CORP.,

Respondent.

/

ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter the Commission) on March 14, 1990, alleging that Respondent discriminated against her on the basis of race in the terms and conditions of her employment, and later amended her complaint to include retaliatory discharge.

The U.S Equal Employment Opportunity Commission (EEOC) determined that there was no cause to believe that an unlawful employment practice had occurred. Upon Petitioner's request, the Commission made a redetermination and found no cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief which was transmitted to the Division of Administrative Hearings (DOAH) on May 12, 1993, for the conduct of a formal Proceeding.

A formal administrative hearing was held in West Palm Beach, Florida, on September 23, 1993, before Hearing Officer Susan B. Kirkland.

Hearing Officer Kirkland issued a Recommended Order of Dismissal, dated December 27,1993.

Public deliberations were held on September 15, 1994, in Orlando, Florida, before this panel of Commissioners.

FINDINGS OF FACT

With respect to the allegation of racial discrimination, the Hearing Officer's findings of fact are adopted.

CONCLUSIONS OF LAW

To the extent that the Hearing Officer's analysis of the legal issues and conclusions based upon the factual findings lead to the determination that Respondent did not commit an unlawful employment practice with respect to the allegations of racial discrimination, we uphold the Hearing Officer's conclusions of law.

The remaining issue to be decided is whether Petitioner has shown that Respondent discriminated against her on the basis of retaliation. In order to meet her burden of proof, Petitioner must first establish a prima facie base of discrimination. In order to establish a prima facie case of retaliation, Petitioner must show that: (1) she engaged in or was believed to have engaged in an activity protected by the Human Rights Act; (2) she was subject to an adverse employment decision based thereon; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Smith v. State of Georgia, 684 F.2d 729, 730 (11th Cir. 1982); Sefsick

1. Florida Department of Corrections. Zephyrhills Correctional Institution, 12 FALR 507 at 510 (FCHR 1989).

   
   

   If this burden is sustained, the Respondent must articulate some legitimate nondiscriminatory reason for its action. Hart v. Double Envelope Corporation, 15 FALR 1664 at 1673 (FCHR 1992).

   
   

   Once this is articulated, the burden returns to the Petitioner to demonstrate the Respondent intentionally discriminated against the Petitioner. See St. Mary's Honor Center v. Hicks, 113 S. CT. 2742 (1993).

   
   

   The panel finds that Petitioner established a prima facie case of retaliation. Petitioner was a sixteen-year employee, who received good evaluations from Respondent, as recently as January, 1990, and a pay increase as recently as February 10,1990. Petitioner filed her charge of discrimination on March 14, 1990. and was discharged on May 2, 1990. Mindy Hill, the General Manager to whom Bobby Mills recommended termination of Petitioner, knew that Petitioner had filed a previous charge of racial discrimination. She made the final decision to dismiss Petitioner.

   
   

   Considering the above, there is a causal connection between the filing of the charge and the discharge. Accordingly the Hearing Officer's conclusion regarding the prima facie case of retaliatory discharge is reversed.

   
   

   The Hearing Officer further found that even if Petitioner had proven a prima facie case, Respondent had articulated legitimate and nondiscriminatory reasons for Petitioner's discharge. Respondent articulated that Petitioner was discharged in May 1990, for leaving work early without permission and failing to follow a supervisor's instructions. At the time of Petitioner's discharge, Mr. Matthey, a white male, was also discharged for leaving work early without permission and failing to follow a supervisor's instructions. The Hearing Officer found that Ms. Hill's decision to discharge Petitioner was based on her and Mr. Mills' belief that Petitioner failed to follow Mr. Mills' instructions to work in another area of the plant and that she left early without permission.

   
   

   The Hearing Officer's legal conclusion that Respondent articulated legitimate and nondiscriminatory reasons for the discharge - leaving work early without permission and failing to follow a supervisor's instructions - appears inconsistent with the Hearing Officer's findings that: (1) Petitioner and Mr.

   Matthey had been granted permission to leave work early due to lack of work; (2) Mr. Mills' subsequent statement to leave or go to the production room did not clearly revoke the prior permission to leave work early; and (3) Neither Petitioner nor Mr. Matthey were aware that Mr. Mills was their supervisor.

   Although the Hearing Officer acknowledged in her conclusions that the basis for the discharge may have been inaccurate, she did not clarify how she determined that Respondent's mistake was nondiscriminatory. It is especially troublesome that Respondent made no attempt to obtain any information concerning the incident from Petitioner, a sixteen-year employee in good standing, either prior to or subsequent to the discharge.

   
   

   The Commission has remanded cases to Hearing Officers to decide issues which the Commission found had not been decided or had not been appropriately decided. See Denton v. Care Health Services, Inc. d/b/a Redi-Nurse, 16 FALR 967 (FCHR 1993).

   
   

   Consequently, we find this matter should be remanded to the Hearing Officer to make findings on whether an unlawful employment practice occurred on the basis of retaliatory discharge.

   
   

   Remand

   
   

   The Petition for Relief and the Complaint of Discrimination are remanded to the Hearing Officer for clarification on her finding on whether an unlawful employment practice occurred on the basis of retaliatory discharge.

   
   

   DONE AND ORDERED this 22nd day of March, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS

   
   

   
   

   Commissioner Geraldine Thompson, Panel Chairperson;

   Commissioner Clarethea Brook; and Commissioner Laura Santos

   
   

   Filed this 22nd day of March, 1995, in Tallahassee Florida.

   
   

   
   

   Sharon Moultry

   Clerk of the Commission

   
   

   
   

   Copies furnished to:

   
   

   Sandra Boatwright pro se 3O West 33rd Street

   Riviera Beach, Florida 33404

   Robert Diffenderfer Messer, Vickers, et al.

   2000 Palm Beach Lakes Boulevard Suite 900

   West Palm Beach, Florida 33409

   
   

   Dana Baird, Legal Advisor for Commission Panel Susan B. Kirkland, DOAH Hearing Officer

   
   

   ================================================================= CLARIFICATION OF RECOMMENDED ORDER

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

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   SANDRA BOATWRIGHT, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 93-2647

   ) PPC PRODUCTS CORPORATION, INC., )

   )

   Respondent. )

   )

   
   

   CLARIFICATION OF RECOMMENDED ORDER

   
   

   On March 22, 1995, the Florida Commission on Human Relations (Commission) issued an Order Remanding Petition for Relief from an Unlawful Employment Practice, remanding this case to the Division of Administrative Hearings and requesting that the Hearing Officer clarify her findings on whether an unlawful employment practice occurred on the basis of retaliatory discharge. In the Recommended Order the Hearing Officer found that the Petitioner had failed to establish a prima facie case of retaliation and further found that even if the Petitioner had established a prima facie case that the Respondent had articulated legitimate reasons for the discharge which were not based on discrimination or retaliation.

   
   

   In its order, the Commission stated:

   
   

   The Hearing Officer's legal conclusion that Respondent articulated legitimate and nondis- criminatory reasons for discharge -- leaving work early without permission and failing to follow a supervisor's instructions -- appears inconsistent with the Hearing Officer's find- ings that: (1) Petitioner and Mr. Matthey had been granted permission to leave work early due to a lack of work; (2) Mr. Mills'

   subsequent statement to leave or go to the production room did not clearly revoke the prior permission to leave work early; and (3) Neither Petitioner nor Mr. Matthey were aware that Mr. Mills was their supervisor. Although the Hearing Officer acknowledged in her conclusions that the basis of discharge may have been inaccurate, she did not clarify how she determined that Respondent's mistake was nondiscriminatory. It is especially trouble- some that Respondent made no attempt to obtain any information concerning the incident from Petitioner, a sixteen-year employee in good standing either prior to or subsequent to the discharge.

   
   

   ADDITIONAL CONCLUSIONS OF LAW

   
   

   1. Respondent articulated nonretaliatory reasons for discharging Petitioner. In paragraph 32 of the Recommended Order, I have set forth the scenario that occurred on May 2, 1990, regarding Petitioner's refusal to go work. Mr. Mills did tell Petitioner and Mr. Matthey that they could go work in another area or go home. Mr. Mills then left the area and returned a few minutes later after determining that there was work in the back area. When Mr. Mills came back to the area and found Petitioner and Mr. Matthey still there, he told Petitioner and Mr. Matthey to go to the back and work, and they refused. Such action clearly revoked his previous statement to either go to work or go home. He gave Petitioner and Mr. Matthey an order to go to work in the back and he expected them to do as they were told. To him their actions constituted insubordination.

      
      

   2. Respondent's employee handbook provides that an employee can be discharged immediately for insubordination. Mr. Mills had the authority to fire both employees when they refused to go to work but he chose to go to his supervisor, the general manager of the company. He recommended that both employees be dismissed for insubordination.

      
      

   3. Mr. Mills had no knowledge that Petitioner had filed a discrimination complaint in March against Respondent when he made his recommendation to the general manager; thus Mr. Mills' decision could in no way be based on retaliation. He perceived that insubordination had occurred. His decision may have been hasty and it may have been due to a lack of communications between Mr. Mills and the employees but it was not due to retaliation.

      
      

   4. Mr. Mills made his recommendation to the general manager who accepted his version of the incident and concurred with his recommendation. The general manager had no reason to believe that Mr. Mills was inaccurate in relating what happened. There was no discussion by the general manager with any one that Petitioner should be fired because she had filed a discrimination complaint.

      
      

   5. Insubordination is a legitimate business reason for firing an employee. Respondent having articulated a legitimate business reason for firing Petitioner, the burden shifts to the Petitioner to show that the proffered reason of insubordination was not the true reason for her dismissal. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed2d 207 (1981). Petitioner has failed to meet this burden.

   6. Petitioner argues that because she was a sixteen-year employee and had never been disciplined before that she should have been given some type of warning or lesser discipline for the May 2 incident. She further contends that because she filed a discrimination complaint and was fired within a couple of months of filing the complaint that her firing must have been retaliatory. These reasons may be sufficient to establish the causal link between the filing of the complaint and the dismissal action, but it is not sufficient to overcome the legitimate reasons articulated by Respondent for discharging Petitioner. Simmons v. Camden County Board of Education, 757 F.2d 1187 (11th Cir. 1985).

      
      

   7. The facts in the case support Respondent's position that the discharge was based solely on insubordination. The handbook allowed for immediate termination due to insubordination. A month before Petitioner's discharge, another employee had been terminated for leaving work without permission. Mr. Matthey was also discharged for insubordination at the same time and for the same reasons that Petitioner was discharged. Mr. Matthey had not filed a discrimination complaint prior to his discharge.

      
      

   8. Whether Petitioner perceived that she had permission to leave early and whether she did not understand that Mr. Mills was her supervisor are immaterial because Mr. Mills perceived her actions to be insubordinate. Mr. Mills was unaware that Petitioner had filed a discrimination complaint; therefore, he did not embroider his version of the incident because he was retaliating against Petitioner.

      
      

   9. The general manager accepted Mr. Mills version of the incident and based her decision to fire both Petitioner and Mr. Matthey based on the facts as presented by Mr. Mills. Having judged the credibility of the witnesses, I find that Mindy Hill, the general manager, did not base her decision to discharge Petitioner because Petitioner filed a discrimination complaint.

      
      

   10. Although Ms. Hills' dismissal of a sixteen-year employee without providing an opportunity for Petitioner to present her side may be harsh, it is not retaliatory.

DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND, 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 23rd day of February, 1996.

COPIES FURNISHED:

Robert P. Diffenderfer, Esquire Lewis, Longman & Walker, P.A. Suite 900

2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

Richard A. Ryles, Esquire Schuler, Wilkerson, Halvorson

& Williams, P.A.

1615 Forum Place, Suite 4-D West Palm Beach, Florida 33401

Sandra Boatwright

390 West 33rd Street

Riviera Beach, Florida 33404-3036

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Commission on Human Relations

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 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 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: 93-002647

Orders for Case No: 93-002647