STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY JELKS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5330

)

SUWANNEE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on March 29, 30, April, 18, and May 9, 1994, in Live Oak and Tallahassee, Florida.

APPEARANCES

For Petitioner: Toby Buel, Esquire

Three Rivers Legal Services 817 West Duval Street

Lake City, Florida 32055

For Respondent: C. Dean Lewis, Esquire

Airth, Sellers, Lewis & Prevatt

105 North Ohio Avenue Post Office Drawer 8 Live Oak, Florida 32060

Michael Mattimore, Esquire Kimberly L. King, Esquire

Hogg, Allen, Norton & Blue, P.A.

215 South Monroe Street, Suite 305 Tallahassee, Florida 32301

ISSUES

Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.

STATEMENT OF CASE

Petitioner was employed by Respondent in 1988. In 1991, the Petitioner suffered a work related injury, and received workers' compensation benefits. He returned to work, and was subsequently discharged by Respondent on February 25, 1992. On August 18, 1992, Petitioner filed a charge of discrimination against the Board of Country Commissioners of Suwannee County (Suwannee) pursuant to the Florida Human Rights Act of 1977 alleging he was discharged because of race and handicap.

The Florida Commission of Human Relations (the Commission) investigated the charge, and issued a Notice of Determination: No Cause on March 23, 1993. The Petitioner requested a redetermination, and on August 5, 1993, a Redetermination of no cause was issued. On September 7, 1993, the Petitioner filed a request for a formal hearing, and the matter was referred to the Division of Administrative Hearings on September 14, 1993. The case was set for hearing on March 4, 1994 by notice dated October 22, 1994 by Hearing Officer Benton. Subsequently, the case was reassigned due to the appointment of Hearing Officer Benton to the bench.

On March 10, 1994, Suwannee filed a motion for summary dismissal, which was heard, and on March 24, 1994, the assigned hearing officer ruled as follows on the motion:

1. Petitioner's unlawful discrimination claim regarding denial of promotion was dismissed as being barred by the passage of time; however, Petitioner was permitted to present evidence on the denial as proof of discriminatory intent although relief for the alleged discrimination in promotion was barred.

   
   

2. Jelks was determined to be ineligible to represent the class of persons denied promotion.

   
   

3. Jelks was determined to be ineligible to represent the class of persons who were denied employment because he had been hired.

   
   

4. The class of persons discharged was determined to be too small to require class representation.

   
   

5. Petitioner was determined to be able to represent the class of persons denied equal pay and reasonable accommodation for personal or family illness on the basis of race.

   
   

6. Relief for failure to provide reasonable accommodation for illness was determined to lack economic measurement, and

   relief was limited to a direction to cease the practice if the allegations were proven.

   
   

7. The hearing officer reserved ruling on additional issues relating to discrimination as set forth in Paragraph 4 of the Petitioner's complaint.

The issues to be determined at hearing were limited to Petitioner's personal claim of having been discharged on the basis of race or handicap, and the individual and class claim of disparate pay for the same of similar work based upon race, as stated above.

Both parties filed proposed findings which were read and considered. The appendix to this order which states which of those findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer.

   
   

2. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to

   $6.00/hour.

   
   

3. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired.

   
   

4. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County.

   
   

5. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse

   collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour.

6. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them.

   
   

7. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins.

   
   

8. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour.

   
   

9. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job.

   
   

10. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee.

    
    

11. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties.

    
    

12. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour.

    
    

13. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave.

    
    

14. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of

    which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were.

    
    

15. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged.

    
    

16. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992.

    
    

17. On January 3, 1992, the Petitioner returned to work.

    He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job.

    
    

18. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work.

    
    

19. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner.

    
    

20. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors.

    
    

21. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the

    instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days.

22. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits.

    
    

23. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism.

    
    

24. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing.

    
    

25. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds.

    
    

26. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions.

    
    

27. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity.

    
    

28. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the

    Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave.

    
    

29. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down.

    
    

30. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him.

    
    

31. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits.

    
    

32. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992.

    
    

33. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation.

    
    

34. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him.

    
    

35. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after

    exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay.

36. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave.

    
    

37. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office.

    
    

38. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back.

    
    

39. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing.

    
    

40. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences.

    
    

41. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave;

    1. incompetence or unwillingness to render satisfactory service;

    2. insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations.

    
    

42. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave.

    
    

43. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged.

    
    

44. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged.

45. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992.

    
    

    Discrimination in Promotion and Pay among Blacks.

    
    

46. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool.

    
    

47. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment.

    
    

48. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees.

    
    

49. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer.

    
    

50. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the

    12 years prior to the termination of the Petitioner, the County had never had a Black supervisor.

    
    

51. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County.

    
    

52. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making

    $6.00/hour, so that the differential between their pay was

    $.50/hour in 1988.

53. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks.

54. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case.

    
    

55. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes.

    
    

56. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan.

    
    

57. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action.

    
    

58. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired.

    
    

59. Jelks received the raise at the end of his probation period on November 24, 1988.

    
    

60. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees.

    
    

61. The amounts of their collective salary losses were not presented as a finding of fact.

    
    

62. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.

    
    

    CONCLUSIONS OF LAW

    
    

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

64. The Petitioner is a person and the Respondent is an employer as defined by Chapter 760, Florida Statutes.

65. The Petitioner filed a charge of discrimination alleging discrimination based upon his race and handicap with the FCHR. The Petitioner subsequently filed a Petition for Relief from an Unlawful Employment Practice which included class allegations with respect to his claim of race discrimination as permitted by Rule 60Y-5.008(4), Florida Administrative Code.

    
    

66. The Petitioner bears the burden to show a prima facie case of discrimination. The Petitioner showed he is black and has a handicap. The Petitioner showed he was discharged, and that subsequently his position was filed by a white employee who was not handicapped. With regard to the racial issue, the Petitioner showed that he had performed his duties satisfactorily until he was injured on the job, and was qualified and able to perform his duties. The evidence showed that he was unable to perform the duties which he had performed previous to his injury without assistance which the employer under the then existing law was not obliged to provide.

    
    

67. The Respondent argues that on these facts that the Petitioner was not qualified because he could not perform the duties of the job. However, in this case, the facts show that the employer had assigned white employees, who had returned to work hampered by injuries, to jobs such as directing traffic and holding the traffic direction signs. The facts show that, while the employer had offered physical accommodations to white employees, it denied similar relief to the Petitioner. Although the law did not require an employer make reasonable accommodations for handicapped employees at the time of this case, it did require that the employer treat all its employee equally without regard to race. The County failed to do this. Based upon the facts above the Petitioner presents a prima facie case.

    
    

68. After a Petitioner makes a prima facie case, the Respondent may articulate some legitimate, nondiscriminatory reason for its discharge of the Petitioner. However, it is not necessary that the trier of fact be convinced of Respondent's motives, and the Petitioner may prove by a preponderance of the evidence that the articulated reason was a pretext for discrimination.

    
    

69. In this case, the facts show that from February 14 until February 24, 1992, the Petitioner was absent without leave from the job without authorization. Upon his return, he was confronted by Sikes and Horton. Sikes asked the Petitioner for some explanation of his absence. The Petitioner told him he had been taking care of business. Sikes asked for more facts, and the Petitioner gave him a similarly vague answer, and told Sikes if he intended to fire him, to do it in writing. Sikes warned

    the Petitioner that if he could not provide him with some explanation, he would be forced to discharge him. Thereafter, the Petitioner left the job immediately following the meeting with Sikes and Horton. The county has an abandonment provision which treats unexcused absence for over three days as abandonment of a position. Petitioner was absent before and after the confrontation with Sikes for more than three days. Several days thereafter, Sikes issued a letter of termination to Petitioner.

    The Country has articulated a nondiscriminatory reason to have discharged the Petitioner.

    
    

70. The Petitioner's evidence falls short of proving that the county's actions in discharging him were pretextual, and that he was actually discharged for discriminatory reasons. The Petitioner argues that he would have had enough leave to cover the time off had he not been charged with the leave he took to go to doctors which should have been covered under workers' compensation leave. However, the Petitioner did not comply with the requirements for providing doctors excuses to document his workers' compensation leave. More to the point, the issue is not how leave was credited, but whether the employer discriminated against the Petitioner in discharging him because he was Black or handicapped, and Respondent did not discriminate on those grounds.

    
    

71. The Petitioner could have filed a workers' compensation claim to obtain the leave and other benefits while staying in the position. Further, had Petitioner stayed on the job and raised the issue of disparate treatment regarding his assignments while recovering from an injury with the FCHR, his position could have been sustained.

    
    

72. In this case, however, the Petitioner virtually abandoned his position. He did not meet the minimal expectations of advising his employer when he was going to be absent, or providing doctor's excuses when he returned from work after a doctor's visit or treatment, or explaining his unauthorized absences to his supervisor who had clearly extended himself with regard to the Petitioner's absences. No employer, public or private, can operate without rules regarding attendance, and the Petitioner grossly violated the employer's attendance and leave rules.

    
    

73. Petitioner argues that there was a hostile work environment which resulted in the Petitioner's constructive discharge. While there is evidence of racial discrimination in pay and promotion of employees, the conduct of Sikes in dealing with the Petitioner's absences does not indicate a rush to discharge the Petitioner on any basis. While the employer could have done more to assist the Petitioner in getting back to work,

    there appears to have been a great deal of miscommunication between the doctors, the Petitioner, the rehabilitation counselor, and the employer regarding the Petitioner's capabilities upon returning to work. Notwithstanding the employer's disparate treatment of the Petitioner upon his return, the Petitioner had an obligation to seek redress for disparate

    treatment and follow the rules providing doctor's excuses to substantiate his time off, and seeking authorized absences while the matter was litigated.

    
    

74. The Petitioner was obligated to request authorization prior to leaving his job between February 14 to February 24, 1992. The employer's concern that he had not requested time off or contacted his supervisor was natural. After his return, the Petitioner's failure to provide meaningful explanations and cooperation in the face of the prior absences was just cause for dismissal. Lastly, after the confrontation with Sikes, the Petitioner walked off the job again. Based upon these facts, the Petitioner's subsequent discharge was not pretextual, and was for good cause shown.

    
    

75. Rule 60Y-5.008(4), Florida Administrative Code, provides that a petition may allege that the Respondent has acted on grounds generally applicable to a class and describe the class. The Petitioner alleged he represented several classes of employee but was found to represent only black and handicapped employees. Regarding the allegations of racial discrimination in promotion and pay, the facts reveal a pattern of hiring Blacks in low paying, menial positions and not granting them pay increases in the same manner as white employees. This was true with the Petitioner, and with other black employees. It is noteworthy, however, that the County has increased its number of black supervisors and employees in higher paying jobs, and has attempted to bring itself into compliance with the statutes since the case was filed.

    
    

76. The Petitioner's claims of financial loss were proven and he presented evidence regarding these losses which was considered as proof of the allegations of racially motivated discrimination. However, Section 760.11(9), Florida Statutes, provides that no liability shall accrue from a date more than two years prior to the filing of a complaint with the Commission.

    All of Petitioner's losses arose from acts in 1988, and are barred.

    
    

77. The general comparisons of total white and black employees' salaries do not show the amount of economic loss to black employees. Therefore, relief is limited to an order to the County to cease and desist the discriminatory practices in which it has engaged.

    
    

78. It is doubtful the county would have made the strides it has made since this suit was instituted on promoting and hiring Blacks without the incentive of this action.

79. Pursuant to Section 760.11(6), Florida Statutes, the Commission has discretion to award attorney's fees and costs to a prevailing party.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Florida Commission of Human Relations enter a Final Order directing that:

The Petitioner's Petition for Relief relating to his discharge be dismissed;

Black employees of the County be certified as a class for the period beginning August 1988 until the present;

The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees;

The County's Clerk be ordered to file reports on salary differentials are required by statute; and

Reasonable attorney's fees and costs be awarded to Petitioner's counsel.

DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN

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 8th day of September, 1994.

APPENDIX CASE NO. 93-5330

Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraph 1 Paragraph 2

Paragraph 2 Rejected as contrary to more credible

facts. See Paragraph 41.

Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11.

Paragraph 5 Paragraph 1.

Paragraph 6 Subsumed in Paragraph 11.

Paragraph 7 Subsumed in Paragraphs 11 and 17.

Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law

Paragraph 12 Paragraph 57.

Paragraph 13 Contrary to facts. The Petitioner

returned to duty.

Paragraph 14 Irrelevant.

Paragraph 15 Paragraph 48

Paragraphs 16,17,18 Paragraph 51

Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54.

Paragraph 22 Paragraph 56.

Paragraphs 23,24,25 Paragraphs 2,3,4,58,60

Paragraph 26 Paragraph 26.

Paragraphs 27,28 Paragraph 42.

Paragraphs 29,30 Subsumed in 2,3,52,53.

Paragraph 31 Rejected because Jelks received the raise

at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00.

Paragraph 32 County's claims were rejected on this

point.

Paragraph 33 Paragraph 18

Paragraph 34 The statistical record is rejected for lack

of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs.

Paragraph 35 Subsumed in paragraph 32.

Paragraph 36 Subsumed in paragraph 54.

Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27.

Paragraph 39 Paragraphs 29,30.

Paragraph 40 Is not addressed specifically because it

violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument.

Paragraph 41 Subsumed in Paragraph 17.

Paragraph 42 Paragraph 20.

Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50.

Paragraph 46 Subsumed in Paragraph 55.

Paragraph 47 Rejected. Welder and mechanic were the

same job description.

Paragraph 48 Irrelevant.

Paragraph 49 Rejected because "handicap" relates to

permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work.

Paragraph 50 Irrelevant.

Paragraph 51,52 The name calling by employees, to include

Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks.

Paragraph 53 Paragraph 51.

Respondent's Recommended Order Findings

Paragraphs 1-5 Paragraphs 1-6

Paragraph 6 Subsumed in part in 1-6, and rejected in

part as contrary to most credible evidence.

Paragraphs 7,8 Paragraph 6 & rejected as contrary to most

credible evidence.

Paragraph 9 Rejected as contrary to most credible

evidence.

Paragraph 10,11 Paragraph 8

Paragraph 12,13,14 Paragraph 9,10

Paragraph 15 Paragraph 29

Paragraph 16 Paragraph 49

Paragraphs 17-23 Paragraphs 11-17

Paragraph 24 Paragraph 21

Paragraph 25 Paragraph 19.

Paragraphs 26,27 Irrelevant.

Paragraph 28 Paragraph 25

Paragraph 29 Paragraph 17

Paragraph 30 Rejected as contrary to most credible

evidence.

Paragraph 31 Paragraph 28.

Paragraph 32 Irrelevant.

Paragraph 33 Rejected as contrary to most credible

evidence.

Paragraph 34 Paragraph 20.

Paragraphs 35,36 Paragraph 19 & rejected as contrary to best

evidence.

Paragraph 37 Paragraph 23.

Paragraph 38 Paragraph 24.

Paragraph 39 Paragraph 25.

Paragraph 40 Paragraph 31.

Paragraph 41 Rejected as irrelevant.

Paragraph 42 Paragraph 33.

Paragraphs 43,44 Paragraph 32.

Paragraph 45 Paragraph 35.

Paragraph 46 Paragraph 36.

Paragraph 47 Irrelevant.

Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33.

Paragraph 50 Paragraph 35, best evidence.

Paragraph 51 Paragraph 32.

Paragraph 52 True, but part of law.

Paragraph 53 Paragraph 34.

Paragraphs 54-58 Paragraphs 37,38,40,41

Paragraph 59 Irrelevant.

Paragraph 60 Duplicative.

Paragraphs 61,62 Irrelevant.

Paragraph 63 Rejected as contrary to most credible

evidence.

Paragraph 64 Paragraph 48.

Paragraph 65 Subsumed in Paragraph 41.

Paragraph 66 Subsumed in Paragraph 48.

Paragraph 67 Irrelevant.

Paragraph 68 The wage disparity was the result of hiring

Blacks in the lowest paying jobs.

Paragraph 69 Subsumed in Paragraph 54.

Paragraph 70 Paragraph 50.

Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55.

COPIES FURNISHED:

Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305

215 South Monroe Street Tallahassee, FL 32301

Toby Buel, Esquire

Three Rivers Legal Services

817 West Duval Street Lake City, FL 32055

C. Dean Lewis, Esquire Post Office Box 8

Live Oak, FL 32060

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

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.

================================================================= AGENCY FINAL ORDER AND REMAND

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

LARRY JELKS,

EEOC Case No. 15D920750

Petitioner, FCHR Case No. 92-6127 DOAH Case No. 93-5330

1. FCHR Order No. 95-052

   
   

   SUWANNEE COUNTY,

   
   

   Respondent

   /

   
   

   ORDER FINDING UNLAWFUL EMPLOYMENT PRACTICE OCCURRED;

   DISMISSING PORTIONS OF THE PETITION FOR RELIEF AND REMANDING CASE TO HEARING OFFICER FOR

   FURTHER DETERMINATIONS

   
   

   1. Preliminary Matters

      
      

      Petitioner Larry Jelks filed a complaint of discrimination pursuant to the Human Rights Act of 1977, as amended, Section 760.01-760.10, Florida Statutes (1991), alleging that Respondent committed unlawful employment practices on the basis of Petitioner's race (black) and handicap (displacement of cervical and vertical discs) when it terminated him from his position.

      Further, Petitioner alleged that Respondent committed unlawful employment practices on the basis of race (black) in the manner in which Respondent had compensated him, and in the denial of a promotion.

      
      

      The allegations set forth in the complaint were investigated and, on March 23, 1993, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred. The Petitioner requested a redetermination of this finding, and, on August 5, 1993, the Executive Director issued his redetermination, still finding that no reasonable cause existed to believe that an unlawful employment practice had occurred.

      
      

      The Petitioner filed a petition for Relief from an Unlawful Employment Practice, dated September 2, 1993, and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      A formal administrative hearing was held on March 29 and March 30, 1994, in Live Oak, Florida, and on April 18 and May 9, 1994, in Tallahassee, Florida, before Hearing Officer Stephen F. Dean.

      
      

      Hearing Officer Dean issued a Recommended Order in the matter, dated September 8, 1994.

      
      

      Pursuant to notice, public deliberations were held on September 13, 1995, in Palm Beach, Florida, before the Florida Commission on Human Relations sitting en banc, at which deliberations the Commission determined the action to be taken on the Petition for Relief.

      
      

   2. Petitioner's Exceptions

      
      

      Petitioner filed sixteen numbered exceptions to the Hearing Officer's Recommended Order.

      Exception 1 simply states that Petitioner is filing exceptions, and, consequently, this exception requires no consideration by the Commission.

      
      

      Exceptions 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14 and 16 take exception to the Hearing Officer's view of the evidence presented, and in some instances, inferences drawn from it. It is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses and reach ultimate findings of fact based on competent substantial evidence. See Howard Johnson Company v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987). Consequently, except to the extent they support the Commission's other determinations in this Order with respect to the class certification issue, these exceptions are denied.

      
      

      Exceptions 2 and 6, in part, object to the Hearing Officer's implication in paragraphs 66 and 67 of the Recommended Order that, under the Human Rights Act of 1977, as amended, employers have no duty of reasonable accommodation to employees who are handicapped. We note that the Florida Commission on Human Relations has long held that, under this law, the duty of reasonable accommodation is imposed upon employers. See Nolan v. Florida Power & Light Company, 7 F.A.L.R. 5093, at 5096 and 5097 (FCHR 1985). See also, Brand v. Florida Power Corporation, 633 So.2d 504, at 511, footnote 12 (Fla. 1st DCA 1994), in which the court notes that while no duty of reasonable accommodation is explicitly provided in Florida's Human Rights Act, ... such a duty can be reasonably implied from various statutory provisions." Consequently, these exceptions are granted to the extent they support the contention that, under the Human Rights Act of 1977, as amended, employers have a duty of reasonable accommodation to employees who are handicapped, but they are denied to the extent they support the contention that this duty was violated in this case.

      Exception 15 excepts in part to the Hearing Officer conclusion of law that Petitioner's losses for the unlawful race- based disparate treatment of Petitioner with regard to pay, found to have occurred by the Hearing Officer, arose from acts in 1988, and were therefore barred, based on the section of the Human Rights Act of 1977, as amended, which provides that no liability shall accrue from a date more than two years prior to the filing of a complaint with the Commission. The Hearing Officer found that Respondent engaged in "continuing discrimination in hiring and paying Blacks." Recommended Order, s 53. Further, the Hearing Officer stated, "Regarding the allegations of racial discrimination in promotion and pay, the facts reveal a pattern of hiring Blacks in low paying, menial positions and not granting them pay increases in the same manner as white employees. This

      was true with the Petitioner, and with other black employees." Recommended Order, s 75. Finally, the Hearing Officer found, "The Petitioner's claims of financial loss were proven and he presented evidence regarding these losses which was considered proof of the allegations of racially motivated discrimination.", Recommended Order, s 76. It has been held that the maintenance of an aggrieved person in a discriminatory wage scale is a "continuing violation." See E.E.O.C. v. Hickey-Mitchell Company,

      372 F. Supp. 1117, 6 EPD 8,962 (E.D. Mo. 1973). Consequently, we find the Hearing Officer made an error of law in concluding that Petitioner was not entitled to a remedy for the unlawful manner in which Petitioner was compensated prior to his lawful termination, and we grant Exception 15 to the extent that it supports the Commission's finding herein, but do not, at this time, grant Exception 15 with regard to the representations found therein regarding amounts owed Petitioner.

   3. Respondent's Exceptions

      
      

      Respondent filed thirty-one pages of exceptions to the Hearing Officer's Recommended Order. The exceptions are referenced to specific paragraphs of the Recommended Order, as opposed to being individually numbered, themselves.

      
      

      Respondent excepts to the Hearing Officer's certification of black employees as a class, and the recommended remedy that Respondent be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees. Fla. Admin. Code R. 60Y-5.008(4) indicates that Petitions for Relief may include "class" allegations. Fla.

      Admin. Code R. 60Y-5.008(7) states that on motion of a party, the Hearing Officer may include in the Recommended Order a proposed certification of the class if (a) the class is so numerous that joinder of all members is impractical, (b) there are questions of law or fact common to the class, (c) the claims of the Petitioner are typical of the claims of the class, and (d) the Petitioner will fairly and adequately protect the interests of the class.

      Finally, Fla. Admin. Code R. 60Y-5.008(8) states that if the Commission finds that the proceeding is properly maintained as a class proceeding, the Commission may direct a remand to the Hearing Officer of any class issue which the Commission has not determined. With regard to these exceptions, we do not now reach the issue of whether certification of the class was appropriate in this case. Rather, we note that the Recommended Order contains no findings with regard to the four elements required to make certification of the class appropriate under Fla. Admin.

      Code R. 60Y-5.008(7), supra, and find this to be error. We further note that while the "Recommendation" section of the Recommended Order recommends that Respondent be ordered to cease and desist its discriminatory practices in pay and promotion

      against the class of black employees, the "Statement of the Case" section of the Recommended Order states that Petitioner was determined to be ineligible to represent the class of persons denied promotion, thus making the cease and desist recommendation with regard to promotion inappropriate.

      
      

      Respondent excepts in part to statements made in Recommended Order, p 67, and in so doing has at least implied, contrary to the Hearing Officer, that under the Human Rights Act of 1977, as amended, employers do have a duty of reasonable accommodation to employees who are handicapped. For reasons discussed in Section II of this Order, supra, we grant Respondent's exception to statements made in Recommended Order, 67, to the extent it recognizes employers' duty of reasonable accommodation under the Human Rights Act of 1977, as amended.

      
      

      The remaining exceptions filed by Respondent indicate largely that the findings excepted to would not support an inference of discrimination, or provide a different view of the evidence described therein than that of the Hearing Officer. We note it is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses and reach ultimate findings of fact based on competent substantial evidence. See Howard Johnson Company v. Kilpatrick, supra. We reject Respondent's remaining exceptions.

   4. Supplementation of the Record

      
      

      Following the issuance of the Hearing Officer's Recommended Order, in Petitioner's responsive brief to Respondent's exceptions to the Recommended Order, Petitioner moved to supplement the record with payroll change notices for Helen Stoudemire, Mattie Weatherspoon and Tyrone Tillman. Respondent has objected, arguing that the Commission has no authority to take additional evidence after the close of a formal administrative hearing.

      
      

      The Commission notes that following the formal hearing in this matter the parties entered into a "Stipulation as to Evidentiary Status of Hearing Exhibits, in which it was stipulated that payroll change notices for Mattie L. Weatherspoon and Helen Stoudemire were in evidence as part of Petitioner's Exhibit 18. No mention is made in this stipulation of payroll change notices for Tyrone Tillman.

      
      

      The Petitioner's request to supplement the record with regard to the requested payroll change notices of Mattie Weatherspoon and Helen Stoudemire is hereby granted because, as evidenced by the stipulation, it was intended by the parties that this information be in evidence. Petitioner's request to supplement the record is denied with regard to the requested payroll change notices of Tyrone Tillman.

      
      

   5. Findings of Fact

      
      

      We adopt the Hearing Officer's findings of fact to the extent they are not inconsistent with other determinations found in this Order. Included in this adoption is the Hearing Officer's ultimate finding that no unlawful employment practice occurred in the termination of the Petitioner.

      
      

   6. Conclusions of Law

      
      

      To the extent the Hearing Officer's conclusions of law are consistent with the determinations contained in this Order, they are accepted. To the extent the Hearing Officer's conclusions of law are not consistent with the determinations made in this Order, they are rejected.

      
      

   7. Partial Dismissal

      
      

      The portions of the Petition for Relief and Complaint of Discrimination alleging that unlawful employment practices occurred in the termination of the Petitioner are dismissed with prejudice.

   8. Remand

Based on the foregoing, the Commission hereby remands the portions of the Petition for Relief and Complaint of Discrimination not dismissed, supra, to the Hearing Officer to determine:

1. the appropriate remedy for Petitioner, including attorneys fees and costs, for the unlawful manner in which Respondent compensated Petitioner on the basis of race; and

2. given the competent substantial evidence in the record in support of a pattern of unlawful race-based pay discrimination as found by the Hearing Officer, (a) whether a class certification is appropriate, with specific findings as to the four elements found in Fla. Admin. Code R. 60Y-5.008(7), specially making findings as to whether Petitioner is an appropriate class representative, and (b) if determining that the class is appropriately certified, pursuant to the Commission's authority as stated in Fla. Admin. Code R. 60Y-5.008(8), supra, the Hearing Officer is directed to determine the appropriate relief for the class, taking additional evidence on the issue if necessary.

DONE AND ORDERED this 25th day of October, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Chairperson;

Commissioner Gerald Richman, Vice Chairperson;

Commissioner Clarethea Brooks Commissioner Elena Flom Commissioner Sandra Garcia Commissioner Keith James Commissioner Deborah Wagner

Commissioner Robert Joyce dissents to the finding that no unlawful employment practice occurred on the basis of handicap in Respondent's termination of Petitioner, and dissents to the rejection of Petitioner's Exception 13, which excepts to the denial of Petitioner's claim of unlawful disparate treatment while recovering from his injury, but concurs with this Order in all other respects.

Commissioner Chriss Walker dissents to the rejection of Petitioner's Exception 13, which excepts to the denial of Petitioner's claim of unlawful disparate treatment while

recovering from his injury, but concurs with this Order in all other respects.

Filed this 31st day of October, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Charles R. Bliss, Esquire

Three Rivers Legal Services, Inc.

111 S.W. First Street Gainesville, Florida 32601

Michael Mattimore, Esquire

Hogg, Allen, Norton & Blue, P.A.

215 South Monroe Street, Suite 305 Tallahassee, Florida 32301

James Mallue, Legal Advisor for the Commission Stephen F. Dean, DOAH Hearing Officer

Docket for Case No: 93-005330

Orders for Case No: 93-005330