STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KELVIN WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1457

)

SWEET PAPER SALES CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

On August 12, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kelvin Williams, pro se

1104 East Alabama

Plant City, Florida 33566

For Respondent: Kevin O'Toole, Esquire

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

324 S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of race, in violation of Section 760.10, Fla. Stat. (1993).

PRELIMINARY STATEMENT

On or about September 2, 1993, the Petitioner filed with the Florida Commission on Human Relations (FCHR) a Charge of Discrimination accusing the Respondent of discrimination on the basis of race. It was given FCHR Case No. 93-D080. After investigating, the FCHR determined on February 7, 1994, that there was "no reasonable cause to believe that an unlawful employment practice" had occurred.

On March 9, 1994, the Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings (DOAH) on March 17, 1994, and was given DOAH Case No. 94-1457. The Respondent answered on April 6, 1994, and final hearing was scheduled and convened in Tampa, Florida, on June 14, 1994.

On June 14, 1994, the Petitioner appeared pro se at the final hearing and moved ore tenus for a continuance in order to secure the attendance of witnesses. The Respondent declined to oppose the motion, and final hearing was continued until August 12, 1994. At the final hearing on August 12, 1994, the Petitioner again moved ore tenus for a continuance in order to secure the attendance of witnesses. This time, the motion was denied.

At final hearing, the Petitioner testified in his own behalf and had Petitioner's Exhibit 1 admitted in evidence. The Respondent called three witnesses and had Respondent's Exhibits A (1-26), B (1-4), C (1-2), D(1-2), and E through I admitted in evidence.

Neither party ordered the preparation of a transcript of the final hearing.

The parties were given ten days in which to file proposed recommended orders. Only the Respondent filed one. The proposed findings of fact contained in the Respondent's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. The Respondent, Sweet Paper Sales Corp., hired Petitioner, who is black, as a warehouse worker in 1983. The Petitioner voluntarily resigned his position in June, 1988, to take another job. He reapplied for a job with Sweet Paper in August 1988. Sweet Paper's General Manager, Harold Mize, who is white, liked the Petitioner and thought he had the potential to be a good employee, so he rehired the Petitioner.

   
   

2. Sometime after his return to Sweet Paper, the Petitioner asked Mize for a letter of recommendation so he could apply for a job with another company and gave Mize a two-week notice that he would be leaving Sweet Paper to take another job.

   
   

3. Mize prepared a letter, signed it, and gave it to the Petitioner. The Petitioner did not get the job he sought, but Mize let Petitioner keep his job at Sweet Paper.

   
   

4. Williams had problems with tardiness and insubordination. He also had problems controlling his temper, which led to confrontations with other employees, including supervisors.

   
   

5. Despite these problems, Sweet Paper did not terminate the Petitioner's employment. Whenever one of Petitioner's supervisors felt Petitioner's behavior warranted serious discipline such a suspension or discharge, Petitioner would turn to Mize for help. Because he personally liked Petitioner, and because he thought Petitioner could be a good worker and believed he would "come around" in time, Mize would overlook Petitioner's behavior and overrule the supervisor's attempted discipline.

   
   

6. After Mize had prevented supervisors from disciplining Petitioner on a number of occasions, Mize became concerned that his support of Petitioner was undermining the authority of the supervisors in the warehouse. Then, while Mize was on vacation, a supervisor threatened to discipline the Petitioner, and Petitioner insisted that the office manager telephone Mize to ask Mize to overrule the supervisor. On his return after that incident, Mize warned the Petitioner that things had gone too far and that he would not continue to protect Petitioner as he had in the past.

7. Petitioner had no complaints about warehouse supervisor Randy Mullins, who is white, until Mullins became a supervisor. Once Mullins became a supervisor, Petitioner questioned his authority and often refused to do work at Mullins's direction, often challenging Mullins to explain to Petitioner why another employee could not do the job instead of Petitioner doing it. This was not unusual behavior for the Petitioner in that Petitioner often had similar problems with all of his supervisors.

   
   

8. For a period of time while Mullins was Petitioner's supervisor, Mullins drove Petitioner to and from work. Mullins had also driven Petitioner to his mother's house, his girlfriend's house, and to the grocery store. Mullins also asked Petitioner to play basketball with him on several occasions, but Petitioner declined each invitation.

   
   

9. Petitioner's race was not the source of the difficulties in the working relationship between Petitioner and Mullins. Petitioner's disobedience and insubordinate attitude towards the position of supervisor, which Mullins happened to fill at the time, was the problem.

   
   

10. Petitioner's allegation that Harold Mize was out to get him because of his race is not supported by the evidence. The only evidence Petitioner presented on this issue consisted of several ambiguous hearsay statements of other employees. According to Petitioner, several employees told him that he should not have told Mize that he was looking for another job because Mize did not like Sweet Paper employees looking elsewhere for jobs.

    
    

11. Even is this hearsay evidence were credited, it would only establish that Mize did not like his employees looking for other jobs. It does not show that Mize treated Petitioner differently because of his race. Further, Mize chose to hire Petitioner on two separate occasions. He also helped Petitioner when his supervisors wanted to discipline him. These are not the actions of a man discriminating against an employee based on race.

    
    

12. Petitioner had no complaints about warehouse superintendent, Walt Frier, who is white, until Frier fired the Petitioner on July 8, 1993.

    
    

13. The warehouse receiving office was locked every day at 12:00 noon.

    All employees knew they should not be in that office for any reason after that time. Mullins personally told Petitioner that he should not be in the receiving office after 12:00 noon.

    
    

14. Despite these warnings, Petitioner had been seen in the receiving office a number of times.

    
    

15. On Petitioner's last day of employment, Mullins saw Petitioner on the telephone in the receiving office. Mullins, who was driving a golf cart inside the warehouse, drove off to find Frier to let him know that Petitioner was in the receiving office. Frier wanted to see for himself what Petitioner was doing, so he and Mullins drove back to an area of the warehouse from which they could observe the receiving office.

    
    

16. Mullins and Frier sat in the golf cart and watched Petitioner talking on the telephone in the receiving office. No one else was in or around the office at that time. When Petitioner left the office, Mullins and Frier drove up to him and asked him what he had been doing in that office. Petitioner denied being in the office and said that "Brian" had been using the phone. (He didn't specify a last name.)

17. Frier questioned the only two employees named Brian, and both denied using the receiving office telephone.

    
    

18. Later that afternoon, Frier called the Petitioner to the shipping office at the front of the warehouse. Mullins and two other Sweet Paper employees, Paul Gissendanner and William Teller, also were present. Frier told Petitioner that both Brians had denied using the receiving office telephone.

    
    

19. Petitioner asked Frier if Frier was calling Petitioner a liar. Frier told the Petitioner that he had seen him in the receiving office. The Petitioner then became upset, called Frier a "fucking liar," got close to Frier, yelled, and poked Frier in the forehead with his finger. Frier stepped back and repeatedly instructed Petitioner to stop, but Petitioner did not stop. Firer fired the Petitioner for this behavior. (Petitioner was not and would not have been fired just for being in the receiving office.)

    
    

20. Petitioner left the area momentarily, came back, called everyone present a liar, said, "See ya, wouldn't want to be ya," and threatened to sue Sweet Paper.

    
    

21. Petitioner's behavior was disruptive and would have undermined Frier's authority had Sweet Paper not disciplined Petitioner. Any employee conducting himself or herself in the same or similar manner would have been terminated.

    
    

    CONCLUSIONS OF LAW

    
    

22. Section 760.10(1), Fla. Stat. (1993), makes it unlawful to discriminate against an individual with respect to terms, conditions or privileges of employment because of the individual's race.

    
    

23. In a case such as this, the Petitioner initially has the burden to at least prove a prima facie case of illegal discrimination. If a prima facie case is proven, the burden shifts to the Respondent to articulate legitimate nondiscriminatory reasons for the alleged disparate treatment or adverse action taken against the Petitioner. Then the burden returns to the Petitioner to prove that the articulated reasons are a mere pretext for intentional discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

24. To establish a prima facie case of discrimination, the Petitioner had to prove: (a) that he is a member of a protected class; (b) that his performance met his employer's expectations; (c) that he was discharged; and (d) that he was replaced by a person outside of the protected class or that a person outside the protected class was not discharged for conduct the same as or similar to the conduct for which the Petitioner was discharged. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983).

    
    

25. As reflected in the Findings of Fact in this case, the Petitioner did not even prove a prima facie case. There was no evidence that the Respondent took any adverse employment action against the Petitioner because of the Petitioner's race. Even if a prima facie case had been proven, the Respondent articulated legitimate nondiscriminatory reasons for terminating the Petitioner's employment, and the Petitioner did not prove that the articulated reasons were a mere pretext for intentional discrimination.

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 dismissing the Petition for Relief in this case.

RECOMMENDED this 5th day of October, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 5th day of October, 1994.

COPIES FURNISHED:

Kelvin Williams 1104 E. Alabama

Plant City, Florida 33566

Kevin O'Toole, Esquire

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

1. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606

   
   

   Sharon Moultry, Clerk Human Relations Commission

2. John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

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 to the Florida Commission on Human Relations 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 consult with the Florida Commission on Human Relations concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-001457

Orders for Case No: 94-001457