STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARNELL LUMPKIN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2451

) OCCIDENTAL CHEMICAL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on November 1, 1995, in Jasper, Florida.

APPEARANCES

For Petitioner: Darnell Lumpkin, pro se

Route 1, Box 67

Jasper, Florida 32052

For Respondent: William B. deMeza, Esquire

Holland & Knight Post Office Box 1288

Tampa, Florida 33601 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Occidental Chemical Company, discriminated against Petitioner, Darnell Lumpkin, on the basis of his race in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes?

PRELIMINARY STATEMENT

On or about July 7, 1994, Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Commission determined that Respondent had not committed a discriminatory employment practice by "Notice of Determination: No Cause" entered March 20, 1995.

Petitioner filed a Petition for Relief with the Commission on or about April 25, 1995. On May 11, 1995, the Commission filed the Petition with the Division of Administrative Hearings and requested assignment of a Hearing Officer.

At the final hearing Petitioner testified on his own behalf. Petitioner offered three exhibits, which were accepted into evidence.

Respondent presented the testimony of Frank Steward, James McClellan, III, Dale Parrish, George Sandlin, Jeffrey Angstadt and Shirley Dilger. Respondent also offered nine exhibits, which were accepted into evidence.

No transcript of the final hearing was filed.

Respondent filed a proposed order on November 13, 1995. A ruling on each proposed finding of fact proposed by Respondent has made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Darnell Lumpkin, is a black male.

      
      

   2. Respondent, Occidental Chemical Company (hereinafter referred to as "Occidental") (Occidental is now know as "White Springs Agricultural Chemicals, Inc."), is a corporation engaged in the production of agricultural products in Florida.

      
      

   3. At all times pertinent to this proceeding, Mr. Lumpkin was employed by Occidental.

      
      

2. The April 13, 1994 Incident.

   
   

   1. On or about April 13, 1994, Mr. Lumpkin and Jesse Carl Law got into an argument. Both men were employed as First Class Maintenance Mechanics and worked on the same crew at that time.

      
      

   2. Mr. Law is a white man.

      
      

   3. The argument took place during working hours. The argument began in a lunchroom area on the premises of Occidental. Mr. Lumpkin was sitting at a table eating breakfast when the argument began.

      
      

   4. Both Mr. Lumpkin and Mr. Law raised their voices and were angry.

      
      

   5. At some point during the argument, Mr. Law pulled out a knife and threatened Mr. Lumpkin. Another employee, Frank Steward, wrapped his arms around Mr. Law and restrained him.

      
      

   6. Mr. Lumpkin exited the building in which the argument began. Mr. Lumpkin left the building with the intent of going to his truck to retrieve a hand gun, a 357 magnum, which he kept in his truck. Mr. Lumpkin intended to use the hand gun on Mr. Law.

      
      

   7. As Mr. Lumpkin left, the argument continued into a shop area just outside the lunchroom.

      
      

   8. On the way to his truck Mr. Lumpkin spoke with another employee, Tom Kelling. Mr. Lumpkin told Mr. Keating what had happened. Mr. Kelling and Mr. Steward tried to get Mr. Lumpkin to calm down and not do anything.

   9. Mr. Lumpkin eventually calmed down and decided against going to his truck to get his hand gun.

      
      

3. Occidental's Investigation of the April 13, 1994 Incident.

   
   

   1. Mr. Lumpkin's immediate supervisor, James McClellan, learned of the April 13, 1994, incident on Friday, April 15, 1994.

      
      

   2. Mr. McClellan spoke to Mr. Lumpkin on April 15, 1994 about the incident. Mr. Lumpkin reported, among other things, that Mr. Law had pulled a knife on him. Mr. Lumpkin also admitted that he had headed to his truck to retrieve his hand gun and that he intended to use it.

      
      

   3. The incident was immediately reported to the personnel office and the supervisor of security, Dale Parrish. An investigation into the incident was immediately begun.

      
      

   4. Mr. Parrish, George Sandlin, a Labor Relations Associate at Occidental, Tommy Mathis, International Chemical Workers Local 784 chief shop steward, and Glen Gilmer, a Mines Maintenance Manager, conducted interviews concerning the incident on Friday, April 15, 1994.

      
      

   5. International Chemical Workers Local 784 (hereinafter referred to as the "Union") represented hourly employees, including Mr. Lumpkin, at Occidental. The President of the Union, Jeffrey Angstadt, was also informed of the incident.

      
      

   6. Interviews were also conducted on Monday, April 18, 1994. In addition to the individuals listed in finding of fact 16, Shirley Dilger, Occidental's Labor Relations Manager, Jim Heppel, Occidental's Human Resources Manager, and Mr. Angstadt also participated in the interviews.

      
      

   7. A total of eleven employees were interviewed on April 15 and 18, 1994. Some employees were interviewed more than once.

   8. Mr. Lumpkin admitted to Mr. Parrish that he had left the building during the incident to retrieve his hand gun and that he intended to use it.

      
      

4. Disciplinary Action Taken for the April 13, 1994 Incident.

1. Based upon the interviews of April 15, 1994, it was correctly concluded that Mr. Law had pulled a knife on Mr. Lumpkin and that Mr. Lumpkin had left the lunchroom to retrieve his gun with the intent to shoot Mr. Law. These incidents constitute violations of well-known company policies requiring a safe, harmonious workplace and prohibiting poor personal conduct.

   
   

2. It was also concluded on April 15, 1994, that the incident and the relationship between Mr. Lumpkin and Mr. Law constituted a dangerous situation. Therefore, they were both suspended pending the completion of the investigation. The evidence failed to prove that this action was unreasonable.

   
   

3. The conclusions reached by Occidental on April 15, 1994, were sustained at the conclusion of Occcidental's investigation. It was concluded that both men had committed offenses which warranted their termination from employment. Due to their long-term employment with Occidental, however, Occidental decided to suspend both men for thirty days, reassignment of Mr. Law

   and referral of both employees to an employee assistance program. The Union agreed with this determination.

   
   

4. A formal proposal was prepared by Occidental and presented to the Union. The proposal was contained in a document entitled "Conditions for Continued Employment--Jesse C. Law, Darnell Lumpkin." Respondent's exhibit 3.

   
   

5. The formal proposal was presented to Mr. Lumpkin through the Union. On April 27, 1994, Mr. Lumpkin signed the proposal accepting the 30 day suspension and other discipline.

   
   

6. The evidence failed to prove that Occidental's actions in this matter were based in any way upon Mr. Lumpkin's race. The evidence also failed to prove that Mr. Lumpkin did not violate Occidental work rules. Finally, the evidence failed to prove that Mr. Lumpkin engaged in misconduct similar to that of a persons outside his protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

8. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

9. It is settled that the initial burden of proof in a case of alleged disparate treatment race discrimination is the Petitioner's. See Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991). In order to establish a prima facie case of race discrimination, an employee:

   
   

   in addition to being a member of a protected class, must show either (a) that he did not violate the work rule, or (b) that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct.

   
   

   Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989).

   
   

10. If a prima facie case of discrimination is proved, it is rebuttable. The presumption disappears if evidence of a legitimate reason for the employer's actions are proved. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). A mere articulation of a legitimate non-discriminatory reason for

    its actions is all that is required of the employer. See, e.g., St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).

    
    

11. If an employer satisfies its burden, the employee must then prove that the employer's explanation for its conduct is merely a "pretext." See St. Mary's.

    
    

    1. Mr. Lumpkin Failed to Meet His Burden of Proof.

    
    

12. The evidence in this case failed to prove that Mr. Lumpkin did not violate an Occidental work rule. The evidence also failed to prove that Mr. Lumpkin engaged in misconduct similar to that of a person outside his protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct. Mr. Lumpkin, therefore, failed to prove a prima facie case of race discrimination.

    
    

13. Even if Mr. Lumpkin had proved a prima facie case of race discrimination, the evidence proved that Occidental had a non-pretextual reason for its decision to suspend Mr. Lumpkin for 30 days. Mr. Lumpkin failed to prove that his race formed any part of the basis for Occidental's actions in this matter. Mr. Lumpkin admitted that he had intended to shoot another employee as the result of an argument. Such conduct should not be tolerated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on

Human Relations dismissing the Petition for Relief of Darnell Lumpkin.

DONE AND ENTERED this 11th day of December, 1995, in Tallahassee Florida.

LARRY J. SARTIN

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 11th day of December, 1995.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-2451

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Lumpkin did not file a proposed order.

Occidental's Proposed Findings of Fact

1. Hereby accepted.

2. Accepted in 11. The next to the last sentence is not supported by the weight of the evidence.

14-15 Hereby accepted.

1. Accepted in 13 and 14. The evidence failed to prove that Mr. Lumpkin told Mr. McClellan that he intended to "blow [Mr. Law's] head off".

2. Accepted in 15-19.

3. Accepted in 14. The evidence failed to prove that Mr. Lumpkin told Mr. McClellan that he intended to "blow [Mr. Law's] head off".

4. Accepted in 21 and 22.

5. Accepted in 22. 21-22 Accepted in 23.

23 Hereby accepted.

24-25 Accepted in 24 and 25.

1. Hereby accepted.

2. Accepted in 25. 28-30 Hereby accepted.

COPIES FURNISHED:

Darnell Lumpkin Route 1, Box 67

Jasper, Florida 32052

William B. deMeza, Esquire John E. Phillips, Esquire Post Office Box 1288 Tampa, Florida 33601

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 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.

Docket for Case No: 95-002451

Orders for Case No: 95-002451