STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLAN D. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4975

)

CONOCO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly

Diane Cleavinger, on February 1, 1994, in Pensacola, Florida.

APPEARANCES

For Petitioner: William A. Morey, Ph.D.

190 North Old Corry Road, #1202 Pensacola, Florida 32507

For Respondent: Tonya E. Chatton, Attorney at Law

Conoco, Inc.

600 North Dairy Ashford Houston, Texas 77210

STATEMENT OF THE ISSUES

Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner challenged Respondent's decision to terminate his employment as a violation of the Florida Human Rights Act of 1977. On August 5, 1993, a no cause determination was issued by the Florida Commission on Human Relations.

Petitioner filed a Request for Hearing/Petition for Relief on August 26, 1993. The Petitioner's request for formal hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called nine witnesses and offered four exhibits into evidence. Respondent called four witnesses and offered three exhibits into evidence.

After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on March 16, 1994, and April 26, 1994, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the

evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes.

   
   

2. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute.

   
   

3. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992.

   
   

4. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints.

   
   

5. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual."

   
   

6. The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/

   
   

7. Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse.

   
   

8. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers.

   
   

9. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual.

10. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination.

    
    

11. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 760.10, Florida Statutes, provides in relevant part:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,

          national origin, age, handicap, or marital status.

          
          

14. The Act is patterned after Title VII of the Civil Rights Act of 1964,

    42 U.S.C. Section 2000E-2, and federal case law dealing with Title VII is applicable. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991).

    
    

15. The Petitioner has the burden of proving a prima facie case of racial discrimination in violation of the Act. To establish such a case, Petitioner must show:

    
    

    . . . actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discri- minatory criterion illegal under the Act."

    
    

    Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978); see also,

    McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    
    

16. A prima facia case requires proof by a preponderance of evidence that an employee was a member of a protected class, was qualified for his position, was discharged, and the job was given to a person outside the protected group. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 450 U.S. 248, 254 (1981).

    
    

17. Once the Plaintiff establishes a prima facia case, a presumption that the employer unlawfully discriminated against the employee is created. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

18. The Respondent may rebut the Petitioner's initial showing by clearly articulating a legitimate, nondiscriminatory reason for its treatment of the Petitioner.

    
    

    [T]he employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this immediate burden the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.

    
    

    Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The Respondent's burden is one of production. Respondent does not have the burden of persuasion or of proving the factual basis for its explanation. See, McWilliams v. Escambia County School Bd., 658 F.2d, 326, 330-331 (Fla. 5th Cir. 1981).

    
    

19. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine,

    450 U.S. at 253. Therefore, once Respondent successfully articulates reason for its employment action, the Petitioner must prove that the reason offered by the Defendant was merely a pretext to hide a discriminatory motive and that the defendant intentionally discriminated against him because of his race.

    McDonnell Douglas Corp. v. Green, supra, Texas Dept. of Community Affairs v. Burdine, supra, Furnco Construction Corp. v. Waters, supra; St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine, supra.

    
    

20. In this case, Petitioner has failed to present a prima facie case because he failed to demonstrate that the person who replaced him was not a member of a protected class. Moreover, Conoco articulated legitimate, nondiscriminatory reasons for its decision to discharge Mr. Williams, and Mr. Williams has failed to prove that these reasons were a mere pretext to cover up race discrimination. Therefore, the petition for relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed.

DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER

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 2nd day of June, 1994.

ENDNOTE

1/ Petitioner, in a very garbled case, attempted to prove discrimination by introducing several witnesses who had worked for Conoco but whose story did not involve Conoco policy regarding customer complaints. These witnesses testimony was irrelevant. Moreover, the testimony of these witnesses, when comprehensible, did not establish any discrimination against that employee.

Petitioner did offer testimony of a witness who allegedly overheard Tammy Hunter say "fire the nigger." However, this remark if made, was not put in context and was not shown to reference Petitioner. Therefore the remark has no materiality to this case.

APPENDIX TO DOAH CASE NO. 92-4975

The paragraphs were not numbered in Petitioner's Proposed Recommended Order. Therefore, for purposes of this appendix, the paragraphs were numbered consecutively beginning with the section titled "Petitioner's Review of the Proposed Findings of Fact," and excluding titles and subtitles.

1. The facts contained in paragraphs 1 and 2 of Petitioner's proposed findings of fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 20, and 21 of Petitioner's proposed findings of fact are subordinate.

3. The facts contained in paragraphs 22 and 23 of Petitioner's proposed findings of fact were not shown by the evidence as related to discrimination were not shown and were irrelevant.

4. The facts contained in paragraph 11 and the last sentence of paragraph

   17 of Petitioner's Proposed Findings of Fact are immaterial. The remainder of paragraph 17 is subordinate.

5. The facts contained in paragraph 23 of Petitioner's proposed findings of fact as related to discrimination were not shown and are irrelevant.

6. The facts contained in paragraphs 24 of Petitioner's proposed findings of fact as relating to McVicares status as a new employee were not shown. The remaining facts were immaterial or subordinate.

7. Paragraph 25 and 26 of Petitioner's proposed findings of fact were legal argument and are rejected.

8. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11 and 12 of Respondent's proposed findings of fact are adopted in substance insofar as material.

9. The facts contained in paragraphs 10 and 13 of Respondent's proposed findings of fact did not contain any facts.

COPIES FURNISHED:

William A. Morey, Ph.D.

90 North Old Corry Road, #1202 Pensacola, Florida 32507

Tonya E. Chatton, Attorney at Law Conoco, Inc.

600 North Dairy Ashford Houston, Texas 77210

Ms. Sharon Moultry Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee FL 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 93-004975

Orders for Case No: 93-004975