witnesses. Petitioner offered seven (7) exhibits all of which were accepted into evidence. Respondent presented the testimony of six (6) witnesses. Respondent offered ten (10) exhibits all of which were accepted into evidence.
The hearing transcript was filed on May 8, 1995. Petitioner filed a proposed recommended order on May 18, 1995. The Respondent has not filed a proposed recommended order. The Appendix to this Recommended Order contains the undersigned's specific rulings on each of Petitioner's proposed findings of fact.
Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes.
In May of 1990, Petitioner, a black male, began working as a delivery driver for the former owner of the Domino's Pizza franchise in Tallahassee, Florida. Respondent bought the franchise in March of 1992 and retained Petitioner as a driver to deliver pizza at store number 5131.
On March 30, 1992, Petitioner signed a statement that he had read and understood the Respondent's Employee Orientation Manual setting forth, among other things, standards for personal conduct. This manual specifically advises that an employee may be disciplined or discharged for: (1) negligent handling of company funds; (2) insubordination and refusal to do assigned work; (3) disturbing the work force and/or creating a disturbance; and (4) harassment of team members.
At all times material hereto, Scott Nelson was the store manager at Respondent's store number 5131. Mr. Nelson had authority to hire and fire employees at that location.
Though it was against store policy, Mr. Nelson and other employees frequently used profanity and told vulgar off- color jokes while working. Sometimes the jokes involved inappropriate racial overtones. At times Mr. Nelson would call black customers "stupid niggers" after they left the store. Petitioner would also use the term "nigger" in conversations but in a context he believed to be acceptable.
Mr. Nelson encouraged employees to discuss any problem they had with management in the privacy of the office at the rear of the store. Mr. Nelson told the employees that they could speak freely during these discussions and nothing they said would be taken personally. The purpose of holding the discussions in the office was to prevent customers from overhearing the conversations.
Occasionally, Mr. Nelson and an employee would have a heated argument and curse at each other as long as no customers were in the store. Other employees heard these arguments but there is no evidence that the arguments took place outside the confines of the office. During some of these arguments, Mr. Nelson would threaten to fire employees but not follow through with his threats or report the incidents to his superiors.
At all times material to this proceeding, Niki Supplee, a white female, worked as a delivery driver at Respondent's store number 5131. She and Mr. Nelson had heated arguments in which they cursed each other. She was never written up or disciplined after these outbursts. The record does not reveal the location or the subject matter of the arguments between Ms. Supplee and Mr. Nelson.
At all times material to this proceeding, Ms. Supplee had a black boyfriend. Upon learning that her boyfriend was black, Mr. Nelson offended Ms. Supplee by asking why she was attracted to a black man. He wanted to know what was wrong with her and why she could not find a white guy.
Once or twice when Ms. Supplee heard Mr. Nelson use a racial epithet, she informed him that she did not appreciate that kind of language. Subsequently, Mr. Nelson would use a racial slur then apologize to Ms. Supplee.
Petitioner and Mr. Nelson occasionally had a beer together after work. On one of these occasions, Mr. Nelson admitted that he had been raised in an environment where there were very few black people. Mr. Nelson admitted that he had to learn how to get over certain feelings about being around black people when he first began working at Domino's Pizza.
At the hearing Mr. Nelson admitted that on occasion he may have made racial slurs in front of his employees about customers after they left the store. However, prior to the incident which is the subject of this proceeding, no employee ever complained to Mr. Nelson's supervisor, Ron LeStourgeon, about Mr. Nelson's use of racial epithets or perceived racial prejudices. There is no evidence that Mr. Nelson ever used a racial slur directed towards his employees or in relation to an employment decision.
During the period of Petitioner's employment, he was given verbal warnings about failing to be at work on time, making personal stops on company time without permission, and refusing to perform certain tasks on the premises. Mr. Nelson would occasionally instruct Petitioner to do an assigned task at the store when other white employees were standing around talking. However, there is no persuasive evidence that Mr. Nelson's instructions to Petitioner were anything more than a reminder to do a previously assigned routine job for the day.
Mr. Nelson required Petitioner to sign a statement on September 7, 1993, as a result of his refusal to follow directions without complaint. Mr. Nelson prepared the statement in which Petitioner agreed to follow the direction of management staff promptly and without complaint or risk disciplinary action including termination. The statement advises Petitioner that he should go directly to Mr. LeStourgeon if Petitioner had a complaint he could not resolve with Mr. Nelson. There is no competent persuasive evidence that Mr. Nelson created written or verbal policies designed to adversely impact Petitioner and not other employees.
Mr. LeStourgeon was in the store 275 to 300 times during 1993. Petitioner did not attempt to contact Mr. LeStourgeon regarding any perceived racial discrimination at work. Petitioner's testimony to the contrary is not persuasive.
On October 21, 1993, Petitioner filed a claim with the United States Department of Labor, Wage and Hour Division of the Employment Standards
Administration. This complaint alleged that Respondent did not pay Petitioner for all of the hours he worked. Mr. Nelson subsequently resolved this dispute by taking Petitioner's word that he was due the money and including that amount in the next pay check. There is no competent persuasive evidence that Respondent's decision to terminate Petitioner's employment was related to the filing of this claim.
On October 21, 1993, Petitioner also went to the Florida Commission on Human Relations and spoke to an in-take counselor. He did not file a claim but wanted advice because he believed the problems he and other blacks were experiencing at work were due to racial discrimination.
On November 16, 1993, Petitioner made a certain pizza delivery and inadvertently failed to turn in $8.55 when he checked out that night. Milton Finkelstein, the assistant manager on duty, realized after Petitioner left for a two-day vacation that the store was short by that amount. Mr. Nelson was not on duty that evening.
Mr. Nelson returned to work on November 17, 1993, but Mr. Finkelstein had the day off. Mr. Nelson did not determine which driver was responsible for the missing money until Mr. Finkelstein returned to work on November 18, 1993.
Petitioner lived very close to the store but had no telephone. On occasion, a driver was sent to Petitioner's house to ask him to report to work. However, Petitioner let the managers know that he did not want to be bothered at home when he was off.
Petitioner did not return to work until November 19, 1993. Mr. Finkelstein showed the ticket for the missing money to Petitioner who confronted Mr. Nelson in the office.
Because Petitioner denied that he made the delivery, Mr. Nelson called the customer who thought a black man delivered the pizza three days before. Petitioner was the only black driver on duty at store number 5131 on November 16, 1993. Petitioner's testimony that he worked at another Domino's Pizza store for most of that evening is not persuasive.
After the telephone call, Mr. Nelson insisted that Petitioner would have to reimburse the store for the missing $8.55. Mr. Nelson also told Petitioner that he would have to pay future missing receipts even if management did not identify Petitioner as the responsible driver for three days. Petitioner began to argue loudly and yell at Mr. Nelson.
As Petitioner stormed out of the office, he screamed back, "Fuck you, Scott," repeating it several times. Three employees in the front of the store heard Petitioner make these statements. Mr. Nelson then told Petitioner to, "Go get your money. Go get your mileage."
Mr. Nelson was upset at the time of this incident because it was the most threatening scene that had ever occurred in the store. Petitioner and Mr. Nelson had argued in the past but Petitioner had never been so openly defiant. Mr. Nelson intended to take some disciplinary action but did not make an immediate decision to fire Petitioner. Petitioner's testimony that Mr. Nelson fired him before he yelled profanities is not persuasive.
When Petitioner left the store on November 19, 1993, he had cash from that day's deliveries that belonged to the store. Mr. Nelson sent Mr.
Finkelstein and another employee to Petitioner's home to retrieve the cash. Upon their arrival, Petitioner was uncooperative and verbally abusive. They returned to the store without the cash.
Mr. Nelson called Mr. LeStourgeon, to advise him of the situation and ask him what, if any, disciplinary action should be taken. Mr. LeStourgeon directed Mr. Nelson to do what was necessary to retrieve the day's receipts and fire Petitioner for insubordination.
Mr. Nelson called the Tallahassee Police Department. Two police officers interviewed Mr. Nelson then went to Petitioner's house. The officers returned to the store without the cash receipts. There is no evidence that Mr. Nelson ever signed a complaint.
About 1:30 a.m. on November 20, 1993, Petitioner voluntarily returned to the store and gave the cash receipts from November 19, 1993, to Mr. Nelson. He did not pay the $8.55 which he owed the store. Petitioner inquired whether he was fired. Mr. Nelson informed Petitioner that he was fired for insubordination.
Petitioner did not hire black people to work in the store then cut back their hours or fire them in order to replace them with more recently hired white people. Testimony to the contrary is not persuasive.
Mr. Nelson was more than just insensitive at times to other people's feelings. He often failed to conduct himself in a professional manner. He had difficulty supervising and working with white and black employees. He no longer works for Petitioner as a store manager.
Regardless of Mr. Nelson's inappropriate behavior and lack of management skills, his decision to report Petitioner's insubordinate conduct to Mr. LeStourgeon was not motivated by intentional racial discrimination. Rather, Mr. Nelson sought the advice of his superior because of Petitioner's gross insubordination: (1) he cursed the store manager in front of other employees;
(2) he refused to pay $8.55 for the pizza delivered on November 16, 1993; (3) he refused to promptly turn in the cash receipts from November 19, 1993 upon request; and (4) he verbally abused the assistant manager and the other employee who attempted to retrieve cash receipts.
Competent persuasive evidence indicates that Mr. LeStourgeon made the decision to fire Petitioner based on his conduct alone with no knowledge of Mr. Nelson's policies regarding profanity or vulgarity. Mr. Nelson's racial prejudices, if any, were unknown to Mr. LeStourgeon and not a consideration in the employment decision. Moreover, Mr. LeStourgeon would have fired Petitioner because of his blatant insubordination and threatening attitude even if he had been aware that Mr. Nelson had tolerated similar conduct in the past. The same decision would have been reached absent the presence of Mr. Nelson's alleged discriminatory motive.
There is no evidence that Petitioner replaced Petitioner with another driver, white or black.
Mr. Nelson hired Mr. Finkelstein's daughter, a white person, while Petitioner was still working for Respondent. She backed into a customer's car in the parking lot. Respondent gave the customer twenty-five free pizzas for damage to his car because Mr. Finkelstein agreed to pay Respondent for the
pizzas. Mr. Finkelstein subsequently reimbursed Respondent. This incident does not show favoritism for white employees.
During 1993, Respondent had approximately twenty-three (23) employees at store number 5131. Of those employees, sixteen (16) were white, five (5) were black, and two (2) were Hispanic. Petitioner was the only employee fired from Respondent's store number 5131 in 1993.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).
Section 760.10, Florida Statutes, prohibits an employer from discharging an employee on account of that employee's race.
In order to prove a violation of Section 760.10, Florida Statutes, Petitioner must initially prove that: (a) he is a member of a protected class;
(b) his performance met his employer's expectations; (c) he was discharged; and
(d) he was replaced by a person outside of the protected class or a person outside the protected class was not discharged for conduct the same as or similar to the conduct for which Petitioner was discharged. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 250, n. 8 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
It is uncontested that Petitioner is a member of a protected class and that he was discharged. However, Petitioner has not proven by a preponderance of the evidence that his job performance met Respondent's expectations.
Petitioner was often late to work and frequently complained when management assigned him routine jobs around the store. His poor attitude and tendency to argue with management was tolerated for a long time. Mr. Nelson expected all employees to confine any disputes with management to the privacy of the office. The gross insubordination displayed by Petitioner on the evening of November 19, 1993, went beyond the boundary of Mr. Nelson's "in-store" policy which gave employees the opportunity to vent their anger in private. Certainly Respondent never expected Petitioner to refuse to pay for a delivery he made or to leave the store for the evening with cash receipts in his possession. Contrary to Respondent's expectations, Petitioner verbally abused the assistant manager and refused to give him the cash.
Petitioner has also failed to prove by a preponderance of the evidence that he was discharged for conduct similar to the conduct of employees who were not members of a protected class. Petitioner and Ms. Supplee had previously been in arguments with Mr. Nelson when curse words were exchanged. However, there is no evidence that Ms. Supplee ever screamed curse words at Mr. Nelson in the front of the store where other employees were working.
In the instant case, Petitioner not only directed profanity toward management but refused to pay for a delivery after management's good faith attempt to identify the responsible driver, refused to promptly return the night's cash receipts upon request, and acted in a belligerent manner towards the assistant manager and another employee. There is competent persuasive evidence that Petitioner's conduct on November 19, 1993, was by far the most defiant behavior Mr. Nelson had ever experienced as a store manager.
Part of Petitioner's prima facie case included evidence that Mr. Nelson occasionally made racial slurs about customers behind their backs. These comments and other statements made by Mr. Nelson are direct evidence of discriminatory motive if believed by the trier of fact. Miles v. M.N.C. Corp., 750 F.2d 867, 875 (11th Cir. 1985). In this case, Mr. Nelson did not deny that he made the remarks. However, the undersigned does not find that Mr. Nelson's statements are direct evidence that he had a discriminatory motive when he reported Petitioner's conduct to Mr. LeStourgeon.
Statements made by management which are not directed toward any employee and are not related to any employment decision do not satisfy an employee's burden that he or she was discharged for illegitimate reasons. Equal Employment Opportunity Commission v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1990). Petitioner has not shown that Mr. Nelson's occasional derogatory comments of a racial nature were sufficient to amount to an unlawful employment practice. See Vaughn v. Pool Offshore Company, 683 F.2d 922, 924-925 (5th Cir. 1982); E.G. Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87
88 (8th Cir. 1977); Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 238 (5th Cir. 1971).
Assuming in the alternative that Petitioner proved his prima facie case, Respondent produced evidence that Petitioner was discharged "for a legitimate, nondiscriminatory reason." Burdine, 450 U.S., at 254. The severity of Petitioner's insubordination before he was fired is such a reason. Even if Mr. Nelson's racial slurs were direct evidence of Mr. Nelson's discriminatory motive, which, under Miles, 750 F.2d, at 875-876, would shift the burden of persuasion to Respondent, the preponderance of the evidence indicates that Respondent would have terminated Petitioner absent the presence of Mr. Nelson's alleged prejudice.
There is no evidence that Ms. Supplee or any other employee were as insubordinate as Petitioner and treated more leniently. Testimony that Mr. Nelson deliberately set policies which would adversely impact Petitioner is not persuasive. Likewise, testimony that Mr. Nelson favored white employees in a variety of employment decisions is contradicted by more persuasive evidence.
Mr. LeStourgeon would have made the same decision to fire Petitioner even if he had been aware that Mr. Nelson had tolerated profanity and situations involving less threatening insubordination on other occasions. Racial prejudice was not a consideration in Mr. LeStourgeon's decision.
The conclusion reached here does not condone Mr. Nelson's management style, his use of racial slurs, and his general insensitivity to the feelings of the employees that worked under his supervision. The preponderance of the evidence indicates that regardless of Mr. Nelson's personal feelings towards Petitioner or black people in general, the employment decision would have been the same.
