STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALLY PUGH, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 93-5332

) FCHR NO. 93-2223

WALT DISNEY WORLD COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on February 8, 1994, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mally Pugh, Jr. (pro se)

500 Para Avenue Kissimmee, Florida 34741

For Respondent: Susan K. McKenna, Esquire

Garwood, McKenna & McKenna, P.A. 815 North Garland Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was terminated from his position as a Lodging Host (bellman) with the Respondent at the Contemporary Resort Hotel in Walt Disney World on June 6, 1993, on the basis of his race (African-American), in violation of Section 760.10(1)(a), Florida Statutes (1991).

PRELIMINARY STATEMENT

The Petitioner initially filed a complaint with the Orlando Human Relations Department on or about January 13, 1993, charging the Respondent with employment discrimination by harassment and suspension from his job. The case was sent for initial processing to the Florida Commission on Human Relations. Subsequently, on or about August 5, 1993, a determination was issued by the FCHR. The Petitioner filed a Petition for Relief with the FCHR on September 3, 1993, in which Petitioner requested a formal hearing.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on September 13, 1993. Following discovery, a formal hearing was held.

At the hearing, Petitioner presented the testimony of seven witnesses, and Petitioner testified in his own behalf. One exhibit was received in evidence. The Respondent presented the testimony of three witnesses, and nine exhibits were received in evidence. A transcript was ordered and was filed with the Clerk of the Division on March 25, 1994. The parties were allowed ten days from the filing of the transcript in which to file proposed findings of fact and conclusions of law. Respondent moved to extend the time for the filing of proposed recommended orders to April 14, 1994. Petitioner did not object and the motion was granted. Petitioner has not filed proposed findings. Respondent filed proposed findings on April 14, 1994. My specific ruling on the proposals is contained in the Appendix.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer under the Florida Human Relations Act of 1977, as amended.

   
   

2. Petitioner was employed by Respondent as a Lodging Host (bellman) at the Contemporary Resort Hotel at Walt Disney World for more than nineteen (19) years, including the relevant period of time 1992- 1993.

   
   

3. Petitioner is an African-American, and a member of a protected class.

   
   

4. Petitioner began employment with the Walt Disney World company in the Contemporary Resort Hotel's food section in 1974. He was soon transferred to the hotel's lodging services as a bellman. Petitioner worked in this capacity until he was terminated on June 6, 1993.

   
   

5. Beginning in 1991, the hotel's management began to emphasize the need for the correction of baggage handling problems at the hotel. Respondent began to strictly enforce its policies and procedures with respect to baggage handling in order to improve service to its guests.

   
   

6. Management had received a number of complaints about the bell services function, and on at least one occasion the bellmen lost out on a sizeable cash tip due to a convention guest's dissatisfaction with their level of service. The bellmen, including Respondent and the union steward, were aware of the strict enforcement policy on baggage handling procedures in the 1991 - 1993 timeframe.

   
   

7. Respondent received a written reprimand on September 29, 1992 for improper baggage handling when he delivered a bag belonging to one guest to a different guest's room.

   
   

8. The bag, which contained valuable collectibles and medication, could not be located after a search of each of the hotel's 1,053 rooms. Respondent was obliged to contact the guest's doctor and obtain a new prescription. The disruption occasioned by this incident was so extreme that the head of the Resorts Division for Disney personally received a complaint from the agitated guest.

9. When Petitioner was given the written reprimand, at no time did he state that the reprimand was unfair or discriminatory. Indeed, Petitioner did not grieve the reprimand through the union grievance procedure because he admitted that his failure to check the luggage tags had caused the mistake.

   
   

10. On December 3, 1992 Petitioner initially received a three day suspension for another baggage handling mistake.

    
    

11. Petitioner had gone to a guest room, picked up a guest's luggage and was told by the guest that he would be down in few minutes. After waiting for the guest for about fifteen minutes, Petitioner left the bags by the dispatch desk. Eventually the bags were placed in the luggage room by another employee.

    
    

12. According to proper procedure, when the guest did not arrive to claim the luggage immediately, Petitioner should have placed the bags in a secure area. An electronic game worth approximately $500 turned up missing from the guest's luggage and the hotel was forced to compensate the guest accordingly.

    
    

13. According to the union contract, once an employee receives a written reprimand, he can be terminated for the second offense. However, Respondent considered that Petitioner was a twenty year employee and the union contract allowed the use of lesser discipline. Therefore, Petitioner was issued a suspension.

    
    

14. Petitioner filed a grievance through the union's grievance procedure because he thought that a suspension was too severe a penalty. The suspension was reduced to a written reprimand.

    
    

15. Petitioner received a three day disciplinary suspension without pay on March 29, 1993 for a third baggage handling mistake in less than one year.

    
    

16. On this occasion, Petitioner took a departing guest's bag to the room of a guest who had just checked in, resulting in the departing guest's loss of a bag containing his airline ticket. The hotel eventually had to compensate the guest for the replacement ticket.

    
    

17. Petitioner admitted that he made a baggage handling mistake and did not file a grievance.

    
    

18. At no time did Petitioner indicate to the office manager responsible for the progressive discipline he received that he thought he was being treated unfairly because of his race.

    
    

19. In conjunction with this suspension, Petitioner was retrained in proper baggage handling procedures by the union steward, Bob Pfaff, and another employee, Richard Dennis. The retraining took more than three days to complete and was very thorough. At the conclusion of the retraining, Petitioner received a final check-out form which showed all the various procedures and policies for executing the bellman function which were reviewed by him during the training. He was advised that he would be terminated if another baggage handling mistake occurred within the next year.

    
    

20. Petitioner was terminated on June 6, 1993 following two additional baggage handling mistakes.

21. First, Petitioner forgot to take a hanging bag out of a guest's room. Petitioner admitted that if he had checked the luggage control sheet he would have realized that he had forgotten to take the bag out of the guest room when the guest was checking out.

    
    

22. Later, after being approached about the first incident by supervision, Petitioner failed to properly store luggage given to him by a guest for safekeeping.

    
    

23. Both of these mistakes were presented to management and the decision was made to terminate Petitioner.

    
    

24. Petitioner consulted with the union and chose not to file a grievance.

    
    

25. Petitioner's allegation that other employees received different treatment in circumstances similar to his is not substantiated by the evidence.

    
    

26. Respondent attempted to minimize the possibility of termination by offering Petitioner other open positions within the Company at the time of the April suspension. Despite these offers, Petitioner turned them down because he wanted to remain a bellman.

    
    

27. After his termination, Petitioner did not attempt to find employment as a bellman at any other hotel because he was "burned out" after working in that capacity for almost twenty years.

    
    

28. No incidents other than Petitioner's admitted baggage handling mistakes were used in deciding to terminate him. Under the union contract progressive discipline applies only to similar offenses.

    
    

29. Petitioner claims that white employees (Barbara Tompkins and John Marsh) were treated more favorably than he was treated upon his return from medical leave. The evidence, however, indicates that management tried in every case to utilize employees with temporary restrictions in positions as close to their regular jobs as possible.

    
    

30. Upon his return to work from medical leave in 1992, Petitioner was assigned duties consistent with his restrictions and as close to his regular position as possible.

    
    

31. An incident which Petitioner admits had no effect on the decision to terminate him but which he believes was discriminatory occurred while he was working in the parking lot on light duty and gave a "pargo" ride to his cousin, Jerome. Petitioner initially received a written reprimand for this incident. The reprimand was later withdrawn after management investigated Petitioner's parking lot training which had been conducted by Ernie Ramirez. There is no evidence that Stuart Arp, the supervisor who issued the reprimand, ever treated a white employee any differently for the same conduct.

    
    

32. After his return from medical leave, a dispute arose about Petitioner's seniority. A similar grievance was pending in another location involving a white employee, Shafe Crawford. Respondent's Labor Relations Department and the union decided to await the outcome of Crawford's grievance, since it would resolve Petitioner's dispute as well. When the grievance was decided in Crawford's favor, Petitioner's seniority was adjusted. Despite an implication to the contrary by Petitioner, this incident was not discriminatory.

33. Petitioner's car was towed in 1991 after he parked in a construction area. While he admits that he deserved to be towed, Petitioner claims that white employees were treated more favorably than he. Other illegally parked cars which Petitioner claims were not towed, however, were not parked in a construction zone. Petitioner admitted that he did not know of any car that was parked in a construction zone which was not towed.

    
    

34. Petitioner complained that he was mistakenly blamed for making a phone call which was actually made by Kelly Widen, a white employee. As the only employee stationed in the luggage room, Petitioner was questioned by his supervisor, Sue Fox, about an improper telephone call that was placed from the luggage room. Widen was also questioned and admitted making the call, resulting in a discussion notation on her record card. Petitioner received no discipline for this incident, which in no way appears to have been racially motivated.

    
    

35. Finally, Petitioner introduced evidence suggesting that Barbara Tompkins watched Petitioner like a hawk and would dock only him for being a few minutes late at a time when he had attendance problems. Tompkins, a lead, was not a member of supervision. There was no evidence introduced to show that her actions were racially motivated.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 120.57(1) and 760.11(6), Florida Statutes.

    
    

37. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or other discriminations against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a), F.S.)

    
    

38. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the very recent case of St. Mary's Honor Center v. Hicks,

    U.S. , 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination.

    
    

39. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory and unfair treatment and discharge. Petitioner must show that:

    
    

    1. The Petitioner is a member of a protected class (African American);

    2. The employee is qualified to remain in the position;

    3. The employee was subject to an adverse employment decision (Petitioner was terminated from his position);

    4. Similarly situated non-protected employees were not terminated for similar conduct:

    5. There must be shown by the evidence that there is a causal connection between a

       and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia,

       684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982);

       Lee v. Russell County Board of Education,

       684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982),

       appeal after remand, 744 F.2d 768, 36 FEP Cases

       22 (11th Cir. 1984).

       
       

40. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

41. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

42. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

43. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, U.S. ,113 S.Ct. 2742 (1993).

    
    

44. In the case sub judice, the essential question is whether Petitioner has demonstrated by a preponderance of the evidence that the true reason for his termination was intentional racial discrimination. Petitioner has established that he is an African-American (a member of a protected class) and was qualified

    for the position by reason that he was in the same position for over eighteen years. The Petitioner has also established that he was subjected to an adverse employment decision when he was terminated. In addition, Petitioner alleged and offered evidence that tended to show that non-protected employees were treated differently under similar fact situations. Therefore, the Petitioner came forward with sufficient evidence to meet his initial burden of proof on the issue of racial discrimination.

    
    

45. The sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting termination decision. The Respondent has done so. It established by a preponderance of the relevant and credible testimony and business records that the Petitioner was not performing in his position to the legitimate expectations and requirements of Respondent and was not qualified to remain in his position. The evidence suggests that this long-time employee was "burnt out" and unable to perform his bellman duties adequately even after repeated counseling and retraining.

    
    

46. Petitioner mishandled luggage on three separate occasions in a nine month period, for which he received two written reprimands and a three-day suspension without pay. Petitioner was given progressive discipline with each incident and was offered retraining which he completed. He was also advised that another occurrence of mishandled luggage within a one year period would result in his termination. Nevertheless, in June, 1993, Petitioner mishandled luggage again on two occasions and for this reason was terminated.

    Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in June, 1993, were "pretextual".

    
    

47. In addition, other non-protected employees similarly situated were disciplined for mishandling baggage after all employees were notified of management's intent to strictly enforce its baggage handling policies. No evidence was shown that any non-protected employee was treated more favorably under the same circumstances.

    
    

48. Many of the other incidents about which Petitioner complains are both irrelevant and unsupported by the credible evidence. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. Petitioner has failed to show that the Respondent intentionally discriminated against him because of his race.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 10th day of June, 1994.

APPENDIX

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

Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent:

Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9 (in

part), 10, 11, 12, 13, 15, 16, 17, 18 (in part), 19 (in part), 20 (in part), 21,

22 (in part), 23 (in part), 24, 25, 27, 28, 29 (in part).

Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 4 (in part), 9 (in part), 14, 17, 18 (in part), 19 (in part), 20 (in

part), 22 (in part), 23 (in part), 26, 29 (in part).

COPIES FURNISHED:

Mally Pugh, Jr.

500 Para Avenue Kissimmee, Florida 34741

Susan K. McKenna, Esquire Garwood, McKenna & McKenna, P.A. 815 North Garland Avenue Orlando, Florida 32801

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida 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 the 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 consult with the agency that will issue the Final Order in this case concerning their 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

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MALLY PUGH, JR.,

Petitioner, EEOC Case No. 150931451 FCHR Case No. 93-2223

v. DOAH Case No. 93-5332

FCHR Order No. 95-034

WALT DISNEY WORLD COMPANY,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Mally Pugh, Jr., filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Section 760.01 - 760.11, Florida Statutes (Supp. 1992), alleging that Respondent Walt Disney World Company committed an unlawful employment practice by disciplining him and terminating him on the basis of his race (black).

The allegations set forth in the complaint were investigated and, on August 5, 1993, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, received by the Commission on September 3, 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 in Orlando, Florida, on February 8, 1994, before Hearing Officer Daniel M Kilbride.

Hearing Office Kilbride issued a Recommended Order of dismissal, dated June 10, 1994.

Pursuant to notice, public deliberations were held on April 21, 1995, in St. Petersburg, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

FINDINGS OF FACT

The Hearing Officer's findings of fact are supported by competent substantial evidence. We adopt the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

The overall application of the law by the Hearing Officer is a correct disposition of the case.

We note that the Hearing Officer indicated that to establish a prima facie case of discrimination Petitioner must show that: (a) the Petitioner is a member of a protected class; (b) the employee is qualified to remain in the position; (c) the employee was subject to an adverse employment decision; (d) similarly situated non-protected employees were not terminated for similar conduct; and (e) there must be shown evidence that there is a causal connection between "a" and See Recommended Order, 39.

Applying this test, the Hearing Officer concluded that Petitioner established a prima facie case of discrimination. See Recommended Order, 44.

We agree that a prima facie case of discrimination was established in this case.

However, the Commission has adopted conclusions of law which indicate that to establish a prima facie case of unlawful discrimination in termination cases such as this, "the employee must prove [:] (1) that he belongs to a group protected by the statute; (2) that he was qualified for the job; (3) that he was terminated; and (4) that after his termination, the employer hired a person not in petitioner's class or retained those having comparable or lessor qualifications, not in the protected class.", Arnold v. Department of Health and Rehabilitative Services, 16 FALR 576 at 582 (FCHR 1993).

We find this to be the appropriate test, and further note that the Hearing Officer made findings sufficient to establish a prima facie case under this test. (In our view, it can be implied from findings in 47 of the Recommended Order that Respondent retained those of comparable qualifications not in the protected class.)

With this modification, we adopt the Hearing Officer's conclusions of law.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive a notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 10th day of May, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Deborah Wagner, Panel Chairperson; Commissioner Elena Flom; and Commissioner Laura Santos

Filed this 26th day of May, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 331 31

COPIES FURNISHED:

Mally Pugh, Jr.

500 Para Avenue Kissimmee, Florida 34741

Susan K. McKenna, Esquire Garwood, McKenna & McKenna, P.A. 815 North Garland Avenue Orlando, Florida 32801

James Mallue, Legal Advisor for Commission Panel Daniel M. Kilbride, DOAH Hearing Officer

Docket for Case No: 93-005332

Orders for Case No: 93-005332