vs. ) CASE NO. 94-6442
LYKES BROTHERS, INC. )
Respondent. )
A hearing was held in this case in Tampa, Florida on February 8, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For Petitioner: Catherine P. Teti, Esquire
For Respondent: Michael D. Malfitano, Esquire
The issue for consideration in this hearing is whether Hennis Washington, III was discriminated against on the basis of his race when he was terminated from employment with the Respondent, Lykes Brothers, Inc.
By a Charge of Discrimination dated November 19, 1993, filed with the Hillsborough County Human Resources and Equal Opportunity Department, Hennis Washington, III, (Washington), alleged that he was unlawflly discharged from his employment with the Respondent, Lykes Brothers, Inc., (Lykes), on the basis of his race, (Black), in violation of Hillsborough County Human Rights Ordinance
88-9 as amended. This action followed a previous "Probable Cause Determination" made by the Hillsborough County Human Relations Board which was unsuccessfull in its subsequent efforts to resolve the complaint through conciliation. As a result, the County referred the matter for hearing before the Florida Division of Administrative Hearings, and this hearing ensued,
At the hearing, Petitioner presented the testimony of Mr. Washington; Jackson L. Freeman, Washington's former supervisor in the Respondent's Plant City processing plant; Keith Harris, formerly Employee Relations Manager at the Plant City plant; and James L. Pruitt, an equal employment opportunity investigator for the County. Petitioner also introduced Petitioner's Exhibits 1 through 8.
Respondent also called Mr. Harris as its witness and presented the testimony of Dudly W. Hampton, Jr., Vice-President for Employee Relations for Respondent's Meat Packing Division. Respondent also introduced Respondent's Exhibits A through C. the latter was a deposition taken of Mr. Washington.
A transcript was provided and subsequent to the filing thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment.
Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing.
On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling.
There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening.
After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook.
Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race.
Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined.
The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting.
Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents.
At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white.
Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had.
In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union
indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated.
Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees.
Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee.
Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline.
It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom.
Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr.
Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits.
The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
This matter was referred to the Florida Division of Administrative Hearings pursuant to Section 10 (4), Hillsborough County Human Rights Ordinance 88-9, as amended, which, at Section 4(a)(1), indicates it is an unlawful discrimination in employment practice to, inter alia, discharge an employee on the basis of race.
Notwitstanding explicit guidance regarding what constitutes discrimination is given as to other areas treated by the Ordinance, no such guidelines are reflected therein for employment discrimination. Therefore, it is appropriate to examine the law of the State of Florida and of the federal sector for guidance in this area. Petitioner claims Respondent discriminated against Mr. Washington because of his race.
In Florida, under the Florida Commission on Human Relations, and in the federal sector, the claimant has the initial burden of proving a prima facie case of discrimination, McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Once the Petitioner has proven all the elements necessary to establish the prima facie case of discrimination, the employer must then articulate some legitimate, nondiscriminatory reason for the employment decision to allow the trier of fact to conclude the employer's action had not been motivated by a discriminatory mind set.
In the instant case, Mr. Washington was discharged from employment subsequent to an inquiry into the facts and circumstances of his altercation with Mr. Romero. The basic facts are not in dispute. Mr. Washington committed a battery of Mr. Romero by picking him up bodily and throwing him to the ground, which resulted in injury to Mr. Romero. The evidence is not clear whether the action was prompted by Mr. Washington's concerns for his own safety. He claims he was in fear of assault by his victim, and there is some indication that the two "tangled", whatever that means.
The undisputed fact is that Mr. Washington's assault on Mr. Romero took place, notwitstanding the clearly expressed company policy against physical confrontation and the written and oral direction to avoid it to which Mr. Washington had been exposed. Also undisputed is the fact that a prior confrontation between two white employees, which had originally resulted in their being discharged for fighting, ultimately resulted in their being
disciplined and reinstated after a grievance was filed and the employee's union indicated its intent to take the matter to arbitration. That case was ultimately determined to be one of horseplay.
There is a difference between fighting and horseplay clearly defined in published company policy. That it might be legally incorrect is immaterial for the purpose of this hearing so long as its application cannot be shown to be discriminatorily motivated. That the two incidents resulted in different outcomes is also immaterial for the same reason, and it has clearly been shown that the same committee which heard both cases was made up of two African- Americans. If they were wrong in their resolution, that error was not shown to be racially based.
Petitioner also complains of the fact that there were at least two personnel action forms prepared in this case and urges there was an attempt at a post-dated cover-up. The initial termination action taken by Mr. Freeman against Mr. Washington was for "administrative" reasons, a basis reserved for terminations on the basis of unauthorized absences and not for other misconduct. The form submitted upon later request to the County's inquiry reflected a different basis for termination. Assuming, arguendo, that there was an irregularity, it is impossible reasonably to conclude iniquity from these facts and circumstances.
Taken as a whole, the evidence presented by the parties hereto fails to show that Mr. Washington's termination from employment with the Respondent was for any reason that as stated in the termination action, to-wit: fighting. That determination is not contradicted by the ruling of the Department of Labor and Employment Security's Appeals referee.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc.
RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 31st day of March, 1995.
APPENDIX TO RECOMMENDED ORDER
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER:
Accepted and incorporated herein.
- 5. Accepted and incorporated herein.
18. Accepted.
Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County
P.O. Box 1110
Michael D. Malfitano, Esquire Malfitano & Campbell, P.A.
101 E. Kennedy Boulevard Suite 1080
P.O. Box 1840
Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
