STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY McCOY, )

)

Petitioner, )

)

vs. ) Case No. 96-3596

) FLORIDA ROCK & TANK LINES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 10 through 14, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Harriet W. Williams, Esquire

Henry, Buchanan, Hudson, Suber & Carter, P.A.

Post Office Drawer 1049 Tallahassee, Florida 32302

J. Steven Carter, Esquire Henry, Buchanan, Hudson,

Suber & Carter, P.A. Post Office Drawer 1049

Tallahassee, Florida 32302

For Respondent: Davisson F. Dunlap, Jr., Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

Post Office Drawer 190 Tallahassee, Florida 32302-0190

John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10,

Florida Statutes.

PRELIMINARY STATEMENT

On July 19, 1994 Petitioner, Jerry McCoy, filed a charge of discrimination with the Florida Commission on Human Relations (FCHR). The charge of discrimination alleged that Petitioner had been the victim of an unlawful employment practice committed by his former employer, Florida Rock and Tank Lines, Inc. (Florida Rock). Specifically, Petitioner alleged that Florida Rock discriminated against him on the basis of his race when it terminated him from employment. The charge also alleged disparate treatment over job assignments and job pay. However, these latter two allegations were dropped by Petitioner at the hearing in this matter.

On May 16, 1996, FCHR issued a determination of cause, finding that there was reasonable cause to believe that an unlawful employment practice had occurred. On June 17, 1996, Petitioner filed a Petition For Relief based on Florida Rock's

alleged unlawful employment practice and disparate treatment of Petitioner. The matter was forwarded to the Division of Administrative Hearings for a formal hearing.

On March 19, 1997, pursuant to the grant of Petitioner's Motion to Amend his petition, Petitioner amended his petition to include an allegation of disparate impact.

At the final hearing, Petitioner called 8 witnesses and offered 65 exhibits into evidence. Respondent called 6 witnesses and offered 76 exhibits into evidence. Both parties filed deposition testimony following the final hearing.

Additionally, Petitioner filed a Motion for Sanctions against Respondent's former attorney. Jurisdiction is reserved over the Motion for Sanctions.

After the hearing, the parties submitted proposed recommended orders on September 15, 2000.

FINDINGS OF FACT

1. Petitioner, Jerry McCoy, is an African American and is a member of a class protected by Chapter 760, Florida Statutes. Petitioner worked as a tanker truck driver for Florida Rock from 1980 until October, 1993. During his employment, he was assigned to Florida Rock's terminal in Panama City, Florida.

2. Respondent, Florida Rock & Tank Lines, Inc., is a transportation company engaged in the hauling of liquid and dry bulk commodities throughout the United States. Respondent

   transports gasoline, diesel fuel, asphalt, chemicals and other hazardous and corrosive materials. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes.

3. Petitioner, during his 13-year employment with Florida Rock, was generally considered a good truck driver. Over the years, Petitioner received several compliments from customers, safety bonuses and emblems, and a set of his and her watches after 10 years of maintaining a good safety record. On the other hand, Petitioner also received several customer complaints, committed some safety violations, and was banned from two customers' terminals.

4. The trucking industry is heavily regulated. As such, Respondent must obey federal, state, county and city traffic, and transportation laws. In addition, Respondent must follow federal and state environmental laws and regulations because it transports toxic and hazardous substances. The transportation and environmental laws and regulations are strictly enforced. Minor violations can result in substantial penalties. Respondent or the driver, or both, can be fined for violations of any of these laws.

5. To ensure compliance with the federal, state, county, and city laws, and to satisfy requirements of its customers, Respondent established a safety program. Respondent's safety policies were developed as a result of experience in tank truck

   transportation and, when followed by drivers, have resulted in safe loading, transportation, and unloading of products that Respondent transports. To enforce the safety program, Respondent adopted a points system. Under the points system, a driver is assessed points for preventable violations of a safety policy or procedure. A driver who accumulates 24 points within one year is automatically terminated. On a driver's anniversary date, all points assessed during the previous year are removed from the driver's record and the driver begins the year with a clean company driving record.

6. The rules, policies, and procedures of the safety program are contained in the driver's safety manual. All drivers receive a copy of the safety manual when hired. All drivers also receive safety training before being allowed to operate a truck transporting hazardous materials. In addition, to maintain driver awareness of safety rules and regulations, Respondent conducts monthly safety meetings at each terminal. The meetings are conducted by the terminal manager or safety supervisor, or both, and consist of a review of safety rules, policies, procedures, and equipment and recent changes in relevant laws.

7. The safety program is administered by the safety department of Respondent. Luc Cleyman, Director of Safety, directs the daily operations of the safety department. When a

   spill, mixture, or other violation of the safety program occurs, the driver's terminal manager initiates a review of the incident to determine whether it was preventable or non-preventable. If the terminal manager determines that the violation was preventable, the driver is assessed points and/or subjected to other discipline based on the type and severity of the violation. A driver is not assessed points for a non- preventable violation of safety rules and procedures.

8. In certain situations, Mr. Cleyman may instruct the terminal manager to assess a number of points greater or less than the amount specified in the safety manual, and to administer further disciplinary action for safety violations. Under the safety program, management has the authority to administer further disciplinary action for a safety violation, if in their opinion it is warranted. In addition, management has the authority to impose less discipline than that which is set forth in the safety manual. The safety department reviews all citations issued to verify that the correct number of points was assessed. An employee's race is not referenced in the files maintained by the safety department. Consequently, in disciplinary actions, management does not know the race of an employee unless the individual in management knows that particular employee.

9. In this case, unlike most terminal managers, Nancy Dinnes, the terminal manager at the Panama City Terminal, always consulted with the safety department before her initial assessment of points against a driver for a safety violation.

10. Respondent's safety program includes an appeal procedure by which a driver may appeal the determination that an incident was preventable and/or the assessment of points. The safety manual provides:

    The driver has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten

    1. working days after the driver receives his/her notification. Once the appeal is received in the Safety Office, the incident facts will be reviewed by the Accident Review committee and/or the Violation Review Committee. Each committee will be comprised of the Vice President, Division Vice President, and the Director of Safety.

       The Committee's decision regarding work- related injury claims and spillages, mixtures, and contaminations will be final in all cases. In the event a driver does not agree with the committee's decision regarding a traffic accident, then he/she must submit, in writing, his/her disfavor to the Safety Department within ten (10) days after his/her receipt of the committee's decision. The accident facts will then be submitted to the National Safety Council Accident Review Committee for their review and decision. Their determination will be final in all cases.

       
       

11. To encourage drivers to follow the safety program's policies and procedures, Respondent pays substantial quarterly and annual safety bonuses to eligible drivers. An eligible

    driver receives a quarterly safety bonus of four percent of his previous quarter's earnings and an annual safety bonus of two percent of his previous annual earnings. A driver is eligible to receive a quarterly safety bonus unless he or she is assessed six or more points during the quarter. A driver who accumulates

    21 or more points during the year is not eligible to receive an annual safety bonus. Quarterly bonuses are paid in the month following the end of the quarter. Annual safety bonuses are paid in January of the following year. The amount of quarterly and annual safety bonuses is substantial. Drivers always know when they are due a bonus and whether that bonus has been paid.

12. If a driver does not receive a quarterly or annual safety bonus he or she has a right of appeal. The safety manual provides:

    It is Florida Rock and Tank Lines, Inc.'s desire to pay all earned Quarterly and Annual Safety Bonuses. Any driver that does not qualify for the quarterly or annual bonus has the right of appeal, without prejudice. The appeal must be made to the

    
    

    Safety Department, in writing, within ten

    1. working days after the quarter in question has ended or the year in question has ended.

       
       

       Once the appeal is received in the Safety Office, the case will be reviewed by the Bonus Review Committee. The Bonus Review Committee consists of the Vice President, Division Vice President, and Director of Safety. Their findings and recommendations will be final.

13. Petitioner was hired as a driver of tractor-trailer trucks at Respondent's Panama City Terminal on February 28, 1980. His duties included loading petroleum products at distribution terminals and transporting them to gas stations and other facilities in the southeastern part of the United States where he would unload the product into storage tanks.

14. Petitioner was aware of the company's safety policies and procedures. In particular Petitioner was aware of the safety policies and procedures involved in this action.

15. On April 13, 1993, Petitioner delivered resin, a very thick material, to the Georgia-Pacific facility in Albany, Georgia. The hose used for unloading resin is two inches in diameter. The hose was in bad shape. It's end blew off while Petitioner was pumping resin into the storage tank. A spill, which is a potential violation of the company's safety policy, occurred. The violation carries an assessment of twelve points. Petitioner brought the failed hose back to the terminal and showed it to Nancy Dinnes.

16. Upon investigation, Mr. Cleyman was told by a representative of Georgia-Pacific that Petitioner was pumping the resin too fast and blew the end of the hose off. The same Georgia-Pacific representative also complimented Petitioner for his help in containing and cleaning up the spill. Both Ms. Dinnes and Mr. Cleyman were of the opinion that hoses did not

    fail unless Petitioner was forcing too much product into the hose by pumping the product too fast. However, both conceded that Petitioner's claim that the hose failed while he was properly unloading the resin could have occurred. Both gave Petitioner the benefit of the doubt. Therefore, no points were assessed against Petitioner since the spill was deemed unpreventable due to the unpredicted failure of the hose.

17. On April 28, 1993, Petitioner was dispatched to deliver ethanol no-lead regular fuel to Sunshine Jr. Store No.

    28 in Springfield, Florida. When he arrived at the store, Petitioner testified that he was unable to determine into which tank to dispense the ethanol unleaded regular fuel because the storage tanks were not properly marked for ethanol fuel. Likewise, the pumps were not marked for ethanol fuel because the store had not sold ethanol fuel for several months. There were separate storage tanks marked for regular unleaded fuel, mid- grade fuel and premium fuel. Because he was unable to determine the correct tank into which to drop his load, he asked the store manager to identify the correct tank. The store manager did not know and called Sunshine Jr.'s corporate offices. After the store manager contacted someone at the corporate office, the store manager told Petitioner to unload the no-lead regular fuel into the premium fuel tank. Without calling the terminal, Petitioner unloaded regular gasoline in with premium gasoline

    causing a mixture of the two fuels and downgrading the premium fuel to a lesser octane fuel. Petitioner did not draw a diagram of the storage tanks with their markings on the Bill of Lading for the delivery. In instances where the storage tanks are not clearly marked, a driver is required to diagram the location of the storage tanks and the type product each contains so that the information will be on record at the terminal. Petitioner admits that he was aware of the requirement of a diagram under such circumstances. His failure to diagram the storage tanks at Sunshine, Jr. Store No. 28 demonstrates that Petitioner was not confused by the markings on the storage tanks. Indeed he had been disciplined for unloading fuel into the wrong storage tank the previous year at Rice's Grocery.

18. The mixture resulted in the loss of over 1,500 gallons of fuel and caused a hazardous situation. Eventually, the fuel was removed and transported to another location.

19. Because of the dangers to the public from a mixture of hazardous materials and the substantial penalties resulting from such a violation of environmental laws and regulations pertaining to the transportation of petroleum products, Respondent's safety program includes a policy imposing 12 points, or further discipline up to discharge, for preventable mixtures of fuel and other hazardous materials.

20. Respondent's load/unload procedures in the driver's safety manual require a driver before unloading to:

    Check the fill pipe identifications to be sure they are labeled properly and indicate the same product you intend to unload. Do not depend on identification by others. If fill pipes are not properly identified and you are unable to personally identify the contents of the tank, call your terminal for instructions. Failure to do so may endanger lives, property and the environment.

    
    

21. Thus, a driver who cannot determine the correct tank in which to unload may not rely on others for identification of the proper storage tank, but must contact the terminal manager for instructions. A driver who contacts the terminal for instructions does not violate safety rules and procedures if a mixture results. As indicated, Petitioner did not call the terminal for instructions. Petitioner's very confusing testimony to the contrary is not credible. Petitioner admits the above procedure is correct.

22. On April 29, 1993, the day after Petitioner's delivery, Sunshine Jr., Stores contacted terminal manager Dinnes to inform her that Petitioner had unloaded ethanol unleaded fuel into the premium fuel storage tank causing a mixture of the two fuels. Ms. Dinnes investigated the report. As part of her investigation, Respondent sent Fernando Berrios, mechanic, to the site to conduct a visual inspection of the storage tanks. Mr. Berrios found that the tanks were properly marked.

    Additionally, a diagram identifying the layout of the store's storage tanks with their markings was displayed in the store's window. Mr. Berrios drew a diagram showing the layout of the storage tanks with their markings at Sunshine Jr. Store No. 28 on the face of the Truck Bill of Lading pursuant to which Petitioner had delivered the fuel. After her investigation, Ms. Dinnes contacted the safety department and informed Mr. Cleyman that Sunshine Jr. Stores had reported a mixture and to discuss the appropriate discipline.

23. Mr. Cleyman and Ms. Dinnes determined that Petitioner had failed to follow written company procedures pertaining to the unloading of products and mixed two different fuels together by unloading one fuel into the incorrect storage tank. Specifically, they concluded that Petitioner failed to follow written company safety procedures requiring a driver to contact the terminal if the driver is uncertain about which storage tank to unload into or the storage tanks are not properly marked and deliberately mixing two different grades of gasoline together. The mixture was clearly preventable.

24. The points schedule in the safety manual provided that a driver who mixes product should receive twelve points. Accordingly, Mr. Cleyman instructed Ms. Dinnes to assess 12 points against Petitioner's driving record in accordance with the schedule contained in the safety manual.

25. As a result of this violation, Petitioner did not receive his quarterly safety bonus. Petitioner did not appeal the assessment of points on his record or the disqualification for a quarterly safety bonus. Petitioner's claim that he did not receive the Sunshine, Jr. citation is not credible. Moreover, this fact is irrelevant since there was no evidence that the incident was contrived or that Petitioner was harmed if he had not received the Sunshine, Jr. citation. Petitioner admits that contacting the terminal manager is the procedure he should have followed. He did not follow that procedure. Petitioner, also admits he mixed two different grades of fuel.

26. On October 6, 1993, Petitioner delivered diesel fuel to Diamond Sand Company at Mossy Head, Florida. Petitioner returned to the terminal with 510 gallons of diesel fuel in his trailer. Petitioner did not notify the terminal of the left- over fuel. The next day, the tanker trailer containing the diesel fuel was assigned to another driver, David Wood (white), who loaded gasoline into the tank containing the diesel fuel resulting in a mixture of petroleum products. Admittedly, Wood violated Company safety policy by failing to check his trailer for fuel prior to loading it. However, relevant to Petitioner, Respondent's safety policy also required Petitioner to verify that all product had been unloaded from his tanker.

27. A tanker like the one involved here unloads from the bottom of the compartment. Even if the product is not being pumped, gravity causes the product to flow out of the tanker. To determine whether product remains in a tank after unloading, a driver is trained not to open the trailer dome lids, but to open the valve of a tank slightly and to drain the tank's contents into a bucket. If the tank is empty, little or no product will drain into the bucket. If the tank contains product, it will continue to drain into the bucket and the driver will have to close the tank's valve to cut-off the flow. The process is known as the bucket test. If the tank is not empty, the driver is required to contact the terminal to obtain further instructions regarding the disposal of the remaining product. The bucket test is not part of a driver's pre- or post-inspection. The pre-or post-inspection is a term of art which refers to a particular type of DOT required inspection.

28. Petitioner testified that he performed the bucket test, drained the diesel fuel in a bucket until the flow stopped. He gave the fuel to a man in charge of unloading to pour into the storage tank. Petitioner also testified that a man on top of the tanker told him the compartment was empty. Petitioner did not reference this other man in his appeal letter or his FCHR affidavit. Ms. Dinnes did not recall Petitioner telling her about the man on top of the tanker.

29. The safety manual provides that a driver must always call [the terminal] for instructions when a customer cannot take all of the load or does not want all of the load the customer has ordered and owns. Respondent instituted this policy because an extremely hazardous situation is created when petroleum products are stored in a tanker trailer at the terminal without the implementation of appropriate safety precautions. In addition, management needs to be informed about the presence of the product in a tanker trailer, so the next driver using the tanker can be informed to minimize the chance of a mixture.

30. On October 7, 1993, during loading, Mr. Wood discovered that the tank he was loading gasoline into was not empty when the pump cut-off before depositing the amount of gasoline he had entered into the system. He immediately contacted the terminal manager, Ms. Dinnes, to report the mixture. Ms. Dinnes was also contacted by D & H Oil Company and informed the customer did not receive all of the fuel it had ordered. Ms. Dinnes contacted the safety department and informed Mr. Cleyman of the facts and circumstances surrounding the incident.

31. Petitioner failed to notify the terminal that he did not unload 510 gallons of diesel fuel at Mossy Head, Florida. If Petitioner had reported to the terminal that he had leftover product, the terminal manager or dispatcher would have provided

    instructions to Petitioner for its distribution or recorded its presence in the tanker trailer so that the next driver using the tanker would be informed of its presence thereby preventing a mixture.

32. Mr. Cleyman and Ms. Dinnes concluded that Petitioner violated written company safety policy by failing to notify the terminal that diesel fuel remained in the tanker trailer after his last delivery which created a hazardous situation at the terminal and contributed to the creation of a mixture by the next driver to be given the truck to drive. They also concluded that Mr. Wood violated safety rules by failing to check the tanker trailer to verify it was empty before loading gasoline into it. Mr. Cleyman instructed Ms. Dinnes to assess twelve points against both Petitioner and Mr. Wood in accordance with the safety manual.

33. The contaminated product was sold by Respondent to Davis Oil Company in Dothan, Alabama. Respondent lost an estimated $1,988.56 as a result of the safety violations by Petitioner and Mr. Wood. Importantly, using the same tanker trailer that Petitioner used to transport the diesel fuel, Mr. Wood delivered the product to Davis Oil Company without any malfunction of the tanker trailer's equipment, including its emergency and unloading valves. These were the same valves which would have had to malfunction to cause Petitioner to

    believe the tanker was empty when he allegedly performed the bucket test at Mossy Head.

34. After Petitioner received a Notice of Termination, Petitioner appealed to Respondent's safety review committee the assessment of points for the Sunshine, Jr. store and the Mossy Head violations. In his appeal letter, Petitioner contended that he did not violate safety policy because he did not "stick the tank before and after" unloading since "it was unsafe for [him] to climb on top of [the trailer] and there are no guard rails." "Sticking the tank" is where a driver inserts a measuring stick into a compartment to see if any product is left or to measure the amount of product remaining. Petitioner further contended that he was directed by Respondent not to open the trailer dome lids because someone had been killed in an explosion by doing so.

35. Irrespective of the issue of climbing on the tanker to check to see if it was empty, the evidence was uncontroverted that the valves involved in unloading the tanker and performing the bucket test do not malfunction intermittently, but continue to malfunction until repaired. If the valves had not been working, the valves would not have been functioning when the mixture was later unloaded by Mr. Wood. The only conclusion is that Respondent either did not perform the bucket test or performed it improperly. Both conditions violate the company's

    safety policy. The returned product and the resultant mixture were clearly preventable.

36. Pursuant to Respondent's policy, an investigation of the incident based on Petitioner's appeal letter by the safety review committee was initiated. After review of the incident and all contentions made by Petitioner in his appeal letter, the safety review committee upheld the point assessment against Petitioner. It was reasonable for Respondent to rely on the functioning of valves in analyzing the veracity of Petitioner's appeal.

37. Petitioner was discharged on October 8, 1993, for violations of Respondent's safety program. Respondent's safety program specifies that the accumulation of 24 points in one year by an employee results in the dismissal of the employee.

38. In 1993, Petitioner violated the company's safety policies on two separate occasions. The two violations caused Petitioner to accumulate 24 points within one year.

39. The safety policies Petitioner violated were: (1) mixture of petroleum products on April 28, 1993; and (2) failure to notify the terminal of undelivered product left in the tanker trailer he brought back to the terminal after his last delivery which later resulted in a mixture on October 7, 1993.

40. Each violation of the safety program was reported by Nancy Dinnes, Terminal Manager, to Luc Cleyman, Director of the

    company's safety department. The safety department reviewed the facts of each infraction as given to them by the terminal manager. In each case the infractions were preventable. In each case, the point assessment against Petitioner's driving record was in accordance with the point schedule contained in the driver's safety manual. In each case, the number of assessed points was reasonable.

41. However, Petitioner contends that white drivers were treated differently than black drivers. Much of Petitioner's accusations are based on rumor. For instance, Petitioner contends in his Affidavit that Clayton Vaughn (white) had a major spill at Sunshine Jr. Store No. 214, cleaned up by Dave Garner, that was not reported. Petitioner testified that he had no evidence to support this allegation or first-hand knowledge of this incident. He stated that he learned of it through "driver talk," although he could not remember the name of the driver he had heard it from. Mr. Vaughn, Ms. Dinnes, and Ms. Cleyman each state that no such incident occurred and that Petitioner's claim is not true. Petitioner also contends that in July 1991, Lane Corbin (white)and Tommy Jordan (white) could not pass a random drug test, so Ms. Dinnes told them to purchase a bottle of Murine eye drops to put into the urine specimen bottle. Again Petitioner admits that he has no evidence, only hearsay, to support this allegation. Ms. Dinnes denies

    Petitioner's allegation. Mr. Cleyman states that the drug testing of urine specimens utilized by Respondent would have detected an adulterated specimen, therefore, Murine eye drops would not have concealed the use of illicit substances by a test subject.

42. In his Affidavit, Petitioner contends that Tommy Jordan was assessed six points instead of 12 points for a mixture. The citation referred to by Petitioner clearly indicates that 12 points were assessed against Mr. Jordan's driving record.

43. In his Affidavit, Petitioner asserts that Mr. Vaughn had a spill at Citgo. Again, Petitioner has no evidence, only hearsay, to support this assertion. Mr. Vaughn, Ms. Dinnes, Mr. Cleyman, and Gail Williams (dispatcher) state that no such incident took place.

44. Petitioner contends in his Affidavit that Mr. Vaughn tried to load 1,500 gallons of gas into a 1,000 gallon tank, which caused a spill. Petitioner admittedly has only hearsay to support this contention. Mr. Vaughn, Ms. Dinnes and Mr. Cleyman state that no such incident occurred.

45. In his Affidavit, Petitioner states that Mr. Vaughn and Dave Oyler (white) received speeding citations and were not assessed points. Petitioner testified that he had no first-hand knowledge of this allegation. Ms. Dinnes and Mr. Cleyman state

    that they are unaware of any instance where Mr. Vaughn or Mr. Oyler received points for speeding violations. Moreover, each year, Respondent obtains a Division of Motor Vehicle (DMV) report on all drivers and other employees who operate company vehicles. The DMV report does not list infractions.

46. Petitioner also asserts that in November 1992, Tommy Jordan, in violation of company rules, drove through a tunnel in Mobile, Alabama with a placarded trailer. Ms. Dinnes and Mr. Cleyman state that the incident referred to by Petitioner was thoroughly investigated by the safety department and determined to be nonpreventable. The investigation showed that the exit ramp for trucks carrying hazardous materials was not properly marked. As a consequence, Jordan did not have sufficient notice to safely exit the roadway before entering the tunnel. Therefore, the incident was determined to be nonpreventable.

47. Petitioner contends in his Affidavit that Tommy Jordan delivered product to the wrong location which caused a mixture. Petitioner has only hearsay to support this contention. No evidence exists showing that such an incident occurred.

48. Petitioner contends that Mr. Vaughn had a large spill at A.W. Herndon Convenience Store. Petitioner has no first-hand knowledge of this incident. Mr. Vaughn, Mr. Fernando, Mr. Berrios, Ms. Dinnes, and Mr. Cleyman state that a spill occurred; however, the amount spilled was not large, only two

    gallons. After a thorough investigation of this incident, the safety department determined that the spill was nonpreventable. The investigation showed that the spill was caused by a malfunctioning lock-down fitting, and that the size and severity of the spill was minimized by Mr. Vaughn's quick response.

49. At hearing Petitioner presented evidence of some racial slurs in the workplace. In February, 1993, Petitioner testified that Ms. Dinnes told Tommy Jordan that she had to fire that nigger J.J. (John Jordan) because he is influencing that nigger Sheffield and that nigger McCoy. Again, Petitioner testified that he had no first-hand knowledge of this alleged incident. Petitioner learned of the comment from John Jordan. Ms. Dinnes and Tommy Jordan both state that no such statement was made by Mr. Dinnes. John Jordan testified that he overheard the statement. The statement was raised in John Jordan's charge of racial discrimination to FCHR against Respondent. However, the evidence showed that John Jordan was legitimately discharged for deliberately dumping hazardous material at the terminal.

50. Around December 18, 1992, Tommy Jordan delivered product to Tyndall Air Force Base. A black sergeant had instructed Mr. Jordan to deliver the product differently than had been done before. After the sergeant walked away, Mr. Jordan stated in front of a white airman, "Who does that nigger think he is?" The airman informed the sergeant of Mr. Jordan's

    comment. Ms. Dinnes received a telephone call from the Air Force sergeant. He informed her of Tommy Jordan's conduct. Ms. Dinnes informed the sergeant that Mr. Jordan would be terminated immediately. The sergeant told Ms. Dinnes that he

    did not want Mr. Jordan to be discharged, but would be satisfied if he was never assigned to deliver product to the base again.

    Ms. Dinnes called Florida Rock's main office and believes she spoke with Bob Jackson, then president of Florida Rock. She informed him of the incident and the sergeant's desire. Both took the sergeant's request into consideration when making a decision regarding disciplinary action.

51. Ms. Dinnes confronted Tommy Jordan about his conduct.

    
    

    He admitted he made the statement. She told him that he would be terminated immediately if he ever made such a comment again. Ms. Dinnes also told him that if it were not for the sergeant's request that he not be fired, he would have been discharged.

    Mr. Jordan did not use another racial slur in the workplace again. Mr. Jordan was not assigned to haul another load to Tyndall Air Force Base. Tommy Jordan was later terminated for accumulating too many points for safety violations.

52. Numerous other minority and non-minority employees employed at the Panama City Terminal during 1991 through 1993 testified that they had never heard Ms. Dinnes or any other of

    Respondent's manager or supervisor make a derogatory comment based upon race.

53. Mr. Harrison, a black driver, testified that the only derogatory comments relating to race he heard at the terminal from any employee of Respondent were made by Petitioner. Every time Petitioner "got a chance to get close to Harrison" since 1985, Mr. Harrison testified that he called him an "Uncle Tom" and a "bootie kisser" because Harrison refused to get "up in the white folks' face." Mr. Miller a black driver also testified that the only derogatory comments relating to race he heard at the terminal from Respondent's employee were made by Petitioner. Mr. Miller testified that Petitioner called him an "Uncle Tom," a "suck ass," and a "suck butt" because Petitioner said he "liked white people." When Mr. Miller asked Petitioner to stop calling him these names, Petitioner told Mr. Miller that he would "get a gun and shoot [him]."

54. The record clearly indicates that use of racial slurs in the workplace were few and far between. Respondent's policy was to attempt to prohibit such conduct. The company president, Mr. Mabbett, personally investigated Petitioner's claims. In this case, the sporadic racial slurs which occurred are not a sufficient basis to infer an intent to discriminate against Respondent.

55. The terminal manager of Whitaker Oil Company (Whitaker), Jerry Watkins, testified that he barred Petitioner for over two years beginning in late 1990 from hauling loads for Whitaker. Mr. Watkins decided to bar Petitioner after Petitioner said that he could deliver Whitaker loads any time he wanted. Mr. Watkins believed that Petitioner's attitude jeopardized Whitaker's reputation with its customers. Mr. Watkins testified that Whitaker's reputation was its most important asset. He also testified that Petitioner's race had nothing to do with his decision.

56. Three drivers (all white) other than Petitioner also were barred by Mr. Watkins from hauling Whitaker loads during the more than 15 years he has been Whitaker's terminal manager. Only one of these three drivers was employed by Respondent. Pud Parker, a white driver, was barred by Mr. Watkins because he refused to clean his truck. During the time Mr. Parker was barred, Ms. Dinnes did not call Mr. Watkins attempting to have the prohibition lifted as she did for Petitioner.

57. During the time Petitioner was barred, Ms. Dinnes contacted Mr. Watkins repeatedly asking him to allow Petitioner to haul Whitaker loads again. Mr. Watkins refused Ms. Dinnes' request. In defiance of Mr. Watkins' orders, Ms. Dinnes formulated a plan to permit Petitioner to haul Whitaker loads without Mr. Watkins' knowledge. Ms. Dinnes arranged to have

    Mr. Berrios and other drivers load tanker trailers for Petitioner. Mr. Berrios would go to the Whitaker terminal, load the tanker trailer, and bring it back to the Panama City Terminal where Petitioner would take over the transportation duties. Ms. Dinnes instituted this plan to permit Petitioner to earn a living during a time when business was slow. He had complained to her about not being able to make enough money to support his family.

58. This practice continued until Mr. Watkins discovered that Petitioner was hauling Whitaker loads without his permission. When he found out, Mr. Watkins contacted Ms. Dinnes who admitted to him that she had arranged for Petitioner to haul Whitaker loads clandestinely. He directed Ms. Dinnes that Petitioner was barred from transporting any Whitaker loads until further notice. After approximately two years, Mr. Watkins decided to lift the ban.

59. Petitioner had also been barred from hauling loads from the Chevron terminal. Again, Ms. Dinnes repeatedly attempted to have the prohibition lifted. After approximately two years, Petitioner was permitted to transport Chevron loads.

60. Reports pertaining to the compensation of drivers at Respondent's Panama City Terminal from 1991 through 1996 show no discrimination toward black drivers in the area of compensation or load assignments. The compensation reports show that the

    drivers receiving the most compensation in 1991 were Petitioner and Michael Davis, both black drivers. For 1992, 1993 and 1994, Mr. Davis was the second most highly compensated driver. For 1995 and 1996, Mr. Davis was the most highly compensated driver.

61. As discussed below with respect to Petitioner's disparate impact claim, an evaluation of driver discharges from 1990 to August 1997, shows no adverse effect on black drivers in terminations for safety violations. During this period, 18.7 percent of the drivers employed by Tank Lines were black and

    74.4 percent were white. Of the drivers discharged for safety violations 18.9 percent were black and 77.5 percent were white. The percentage of white drivers terminated for safety violations actually exceeded the percentage of white drivers employed by the company. In comparison, the percentage of black drivers discharged for safety violations was nearly identical to the percentage of black drivers employed by Respondent. The undisputed evidence establishes that Respondent applied its safety policies equally to all drivers regardless of their race.

62. A total of 20 white drivers were identified in the discovery process, where according to the safety manual, they could have received 12 points but received less points for creating or contributing to mixtures.

63. With the exception of Roderick Miller, a black driver, all drivers receiving six points for a mixture.

64. For each white driver that was assessed less than the minimum 12 points for the mixture, an explanation of "extenuating circumstances" was offered by Florida Rock to justify the assessment.

65. The white drivers assessed less than the minimum 12 points for a mixture and the explanation for "extenuating circumstances" that justified the assessment of less points as testified to by Luc Cleyman, the safety director, is as follows:

    Dan Butow, a white driver at the Panama City terminal, along with James "Pud" Parker received six points on January 10, 1991.

    The citation issued described the incident as failed to check trailer and loaded on top. The safety department determined that extenuating circumstances existed. The investigation of the incident established that it was caused by a faulty internal valve which failed to open when the handle was pulled. Consequently, the drivers thought that the tanker trailer was empty because when they pulled the handle to open the valve to determine whether the tank was empty, no product came out of the pipe. The bucket test was performed. The tanker trailer used by Parker and Butow had to be repaired before it could be used to transport product again. Ms. Dinnes was directed by the safety department to assess six points against the driving records of Parker and Butow because it was felt the drivers should have recognized the odd feel of the cable when it was pulled and should have known something was wrong. However, it was not clear if the cable felt strange when it was pulled.

    James Parker, a white driver at the Panama City terminal, received six points. The citation issued described the incident as failed to check trailer and loaded on top. This is the same incident described above.

    
    

    Lane Corbin, a white driver at the Panama City terminal, failed to unload number 3 compartment of supreme gas and loaded 96 gallons of no lead gas on top of it in 1989. Mr. Cleyman advised he had no knowledge of any extenuating circumstances since it was prior to his time as safety director.

    
    

    Archie Trull, a white driver at the Panama City terminal, downgraded a product and blended mid-grade in August, 1991. He was given six points. The "extenuating circumstances" justifying the six points was because it was a blending error constituting driver error, not a mixture. The evidence showed that there is a difference between mixing or blending products to purposefully obtain a certain grade of product and the mixtures involved in this case. There is no category in the safety manual specifically referring to blending errors. The error falls in the general or other category of safety violations. A blending error typically results in the assessment of six points.

    
    

    Daniel Webb, a white driver at the Panama City terminal, received six points for a mixture on March 24, 1990. The "extenuating circumstances" justifying Mr. Webb receiving six points was because this was a training situation. Webb removed the tags which identified the product, the trainee mixed the product, and because there was some comparative negligence with him and the trainee, Roderick Miller (black), only six points were assessed. The incident occurred five days after Miller was hired. Miller was being trained by Webb at the time of the incident. Because Miller was a new driver

    in training at the time of the mixture, the safety department directed Ms. Dinnes to assess six points against both drivers.

    
    

    William White, a white driver at the Panama City terminal, brought back 595 gallons to the yard and did not completely unload the no-lead product in October, 1990. Six points were assessed because there was no indication of a mixture.

    
    

    Kenneth Albritton, a white driver at another terminal, received zero points for a spill. The original point assessment was voided.

    The "extenuating circumstances" justifying assessing zero points is unknown. Mr.

    Cleyman testified that to void points it must be deemed unpreventable.

    
    

    Barry Sanders, a white driver at another terminal, had a spill. The cause of the spill was an equipment malfunction because the drop pipe coupling was egg-shaped and did not fit the hose.

    
    

    Ricky Brannen, a white driver at another terminal, received six points for a mixture where he brought product back on the trailer and then loaded other product on top (no- lead on top of premium). Brannen four months earlier had a spill which was deemed preventable in which he got 12 points. If Brannen would have received 12 points for the mixture he would have been terminated.

    Mr. Cleyman was on vacation and did not have sufficient knowledge regarding the assessment.

    
    

    Rosemary Crossman, a white driver at another terminal, had a spill which was voided. The "extenuating circumstances" justifying zero points was because she was not properly trained and therefore, not able to "pump off".

    Lou Dostal, a white driver at the Atlanta terminal, was given 12 points for a spill in 1991. Ultimately, the 12 points were reduced to six points by Cleyman. However, Mr. Cleyman did not know the reasons for the reduction.

    
    

    James Garner, a white driver at the Ocoee terminal, had a mixture and received six points in 1991. The mixture resulted in an upgrade of fuel to a higher octane. There is no rationale set forth in the file. Cleyman believes that he spoke with the terminal manager or had some reason to give six points instead of 12. However, he could not recall the reason for the point assessment.

    
    

    Dennis Lee Hall, a white driver at the Albany terminal received six points for a mixture around July 1993. The six points was [sic] issued for failing to follow procedure which is less harsh than mixture. The point assessment was based on a conversation between Cleyman and the terminal manager. The terminal manager felt that no points should be assessed. The mixture occurred at a tank farm with confusing tanks and pipes. The driver simply hooked to the pipe he thought correct. However, he had traced the wrong connection.

    
    

    Ronnie Harrison, a white driver at the Tampa terminal, who initially received 12 points for a spill in November 1995. In January of 1996, Cleyman removed the points. Steve Cassell, regional manager, requested Cleyman take action on behalf of the driver based on a deceased terminal manager's alleged agreement. Before he died, Fred Tatum, the terminal manager, gave Mr. Harrison three days off, when no pay can be earned, and 12 points, but according to the driver, he intended that he would still get his safety bonus. In trying to honor the deceased terminal manager's alleged arrangements, Cleyman, two months after the incident,

    removed the 12 points and gave Harrison his safety bonus. Additionally, the tanks were not properly marked and the delivery was made to a commercial private account which controlled the delivery.

    
    

    Robert Holland, a white driver at the Tampa terminal, received three days off and six points for failure to unload all of the product at the site. No mixture was involved. Cleyman did not recall the incident in detail.

    
    

    Ray E. Kersey, a white driver at the Tampa terminal, received six points for a spill in March 1990. Cleyman cannot recall the reason for the six-point assessment because it was a difficult drop process at Respondent's terminal and Mr. Kersey could have received zero points. If Cleyman did not believe Kersey, he could have given him

    12 points. Cleyman did not totally believe the narrative written by the driver accurately reflected what happened, but gave him the benefit of the doubt.

    
    

    Michael Koester, a white driver at the Atlanta terminal, received six points for a mixture in 1991. Chevron assumed responsibility for the occurrence because the tag and identification cover did not match. The tag was under muddy water and could not be seen. Mr. Mabbett and Cleyman deemed it unpreventable but still assessed six points.

    
    

    Kee Wayne Laurendine, a white driver at the Jacksonville terminal, received six points for a mixture in 1994. He dropped premium into no-lead fuel. Also, he cross-dropped a kerosene tank with diesel and received 12 points. On July 4th, thousands of people who had been watching fireworks, began to converge on the gas station where the driver was loading product. The people were flipping cigarettes, shooting off fireworks and sparklers, etc. Mr. Laurendine became

    excited, confused, tense and scared that he was going to be blown up. He made an error.

    
    

    Robert Remillard, a white driver at the Atlanta terminal, received six points for a mixture. Luc Cleyman stated that the "extenuating circumstances" were that unloading paint thinner in a tank containing only alcohol residue was not a mixture.

    Remillard received six points because he was supposed to check and see if the tank was clean and he failed to do so. He had been told the tank was clean. On August 15, 1990, Mr. Remillard wrote a narrative describing spilling product on the grass. Luc Cleyman offered no "extenuating circumstances".

    
    

    Elvin Roe, a white driver at the Ocoee terminal, received six points for a mixture in September 1990. Mr. Higgins, a vice president, was sent a memorandum to review the incident on September 23, 1990, for

    Mr. Roe. Mr. Bob Jackson and Mr Higgins agreed Roe should get six points rather than

    12 points and Cleyman issued six points. An alternative disciplinary approach was proposed which included suspension, probation, and forfeiture of a yearly bonus.

    
    

    David Trimmel, a white driver at the Tampa terminal, received six points for failure to unload. There was no mixture. Trimmel also received only 12 points for a spill that he did not report, clean up, notify DEP or the fire department. Mr. Trimmel quit before he could be terminated by the terminal manager.

    
    

66. After reviewing all of the above records, the record shows that each case turned on facts different from those of Mr. McCoy. Some were treated more harshly than hindsight would have warranted. Some were not. Insufficient facts were presented to show that the facts and circumstances were similar

    to those of Petitioner. No expert testimony was offered as to the validity of the sampling of employees or that these employees constituted a statistically significant group. Indeed if the exercise of judgment by management is the objectionable policy of Petitioner, then a larger sample constituting the entire safety program would be appropriate since the exercise of judgment is present throughout the company's disciplinary process. The only evidence presented in this regard was the statistical evidence presented by Respondent. That evidence did not demonstrate an adverse impact or treatment of Petitioner or other minorities. Petitioner's statistical evidence was not shown to be reliable or sufficiently valid. Therefore, the sample referenced above cannot form the basis for an inference of discriminatory intent or disparate impact.

67. At the time of his termination on October 8, 1993, McCoy had earned $26,291.99 for approximately 40 weeks of work in 1993. Therefore, McCoy's annualized earnings in 1993 would have been approximately $34,000. In 1992, McCoy earned

    $30,254.28 from Florida Rock. In 1991, McCoy earned $26,549.38 from Florida Rock. Based on these earnings, McCoy's gross wages from Florida Rock increased in 1992 by 14 percent and in 1993 by

    12.3 percent.

    
    

68. Therefore, based on McCoy's increase from 1991-1993 and the exemplary models above, it is more than reasonable to

    assume that McCoy's earnings as a driver at Florida Rock would have continued to increase at a minimum of five percent per year.

69. Florida Rock also provides significant fringe benefits to its employees that include health benefits, life, and accidental death insurance, dental insurance, profit sharing, a 401K deferred earning plan, disability benefits, holiday, and vacation days, a flexible spending account plan, and payroll taxes. According to Florida Rock, these employee benefits represent an "additional 40 percent of compensation" to Florida Rock's employees. Florida Rock's benefit plan is significantly better than the typical employer.

70. At the time of his termination, Petitioner was 50 years of age.

71. After Petitioner was terminated, he could not find comparable employment and filed for and received unemployment benefits.

72. The State of Florida, Department of Labor, required Petitioner to make a "thorough and continued effort to obtain work" in order to receive unemployment compensation benefits.

73. The Petitioner's family goal regarding his re- employment was for him to get a job in the Panama City area.

74. Petitioner continued to look for employment with out- of-town employers that hired in the Panama City area so he would

    not be away from his family at night. He either was not hired by these employers, or in order to be considered for the positions, he was told he would have to relocate out of state.

75. Petitioner's educational background was limited to high school and he had never received any specific education or training on job searches or job placement. Petitioner attempted to get retrained at Haney Vocational Technical School; however, the company, JTPA, went out of business. Despite not having the background or this knowledge, McCoy attended job fairs and sought training in the communications field from a friend (Robert Alford) who had been in the business for 18 years.

76. Since Petitioner could not locate a truck-driving job similar to or of a like nature with his Florida Rock position, he decided after approximately five to six months to start his own lawn care and telephone communications business. Petitioner reasonably believed that both businesses could be very successful in the Panama City area.

77. Because Petitioner had limited income after being terminated, he used his pension money from his Florida Rock 401K plan both for living expenses and for capital to start his businesses. Petitioner withdrew $102,556 of his 401K savings during this time.

78. Petitioner's telephone communications business was very successful in the beginning. His first bid was accepted

    and a lucrative contract was obtained to install the phone system for a new hotel in Panama City. At the same time, while the communications business was just starting Petitioner continued to operate a lawn care business after having observed the financial success of others, including family members.

79. Margie McCoy took care of all of the bills and invoices associated with the businesses, as well as provided the information to the accountant for the preparation of the income tax returns.

80. At times, Petitioner's lawn care business was seasonal, but for each season, McCoy would provide different types of services for his client as opposed to not working at

    all.

    
    

81. There was at lease one six-month period in which McCoy

    
    

    could not work because he had a stroke on March 21, 1995. There was no credible evidence that Petitioner's stroke or high blood pressure was caused by his termination from Florida Rock.

    Petitioner's high blood pressure did contribute to his stroke. However, Petitioner demonstrated symptoms of elevated blood pressure prior to his discharge from Florida Rock.

82. Notwithstanding his health restrictions, Petitioner continued to try to make his lawn care and telephone businesses successful. Petitioner would work in the sun trying to make the

    lawn care business successful in violation of his doctor's orders.

83. Petitioner's earnings/losses from his communications and lawn care businesses are as follows: 1994 - $878; 1995 -

    $6,722; 1996 - $7,055; 1997 - $739; 1998 - $1,689.

    
    

84. Petitioner currently works for the Bay County School Board driving a school bus. He was hired in 1998. He continues to work his lawn care and communications businesses. He took a night class to become certified as a bus driver, while at the same time operating his lawn care business during the day. The evidence did not show that Petitioner is currently physically able to work for Florida Rock because his blood pressure was not under control as late as January 2000. Therefore reinstatement would not be appropriate.

85. Petitioner earned $7,086 as a school bus driver in 1998, and $12,554.89 in 1999.

86. Based on the circumstances presented to Petitioner after he was terminated from Florida Rock in October 1993, Petitioner used reasonable efforts to seek employment of a like nature compared to his driver's position at Florida Rock. Also, he used reasonable efforts to earn income by starting his own businesses. Following his stroke, McCoy continued to use reasonable efforts to obtain a bus driver position with the Bay County School Board that provided insurance benefits, while at

    the same time, continuing to operate his lawn care business. There is no indication that Petitioner failed to use reasonable efforts to earn income following his termination from Florida Rock.

87. Moreover, Petitioner's pension/401K savings of

    
    

    $102,556 that was lost and used to start the businesses and for living expenses (as well as additional amounts that would have been contributed to the 401K plan), would have continued to grow and compound during this period.

88. Petitioner's damages from lost earnings and benefits, lost earnings on his 401K plan (assuming 10 percent simple interest), and total back pay damages less mitigated earning from October 1993 to the present is as follows:

    Date	Lost Wages	Lost Benefits (40%)	Lost Earnings To 401K2	Less Mitigated Earnings	Total Loss
    Oct. 93- Dec 93	$8,000	$3,200	$10,255		$11,200
    1994	$35,700	$14,280	$10,255	<$4,250> (unemploy -ment)	$55,985
    1995	$37,485	$14,994	$10,255	0	$62,734
    1996	$39,359	$15,743	$10,255	0	$65,357
    1997	$41,327	$16,530	$10,255	<$739>	$67,373
    1998	$43,393	$17,357	$10,255	<$7,086>	$63,919
    1999	$45,562	$18,224	$10,255	<$12,554>	$61,487
    Jan. 00- Sept. 00	$35,880	$14,352	$7,691	<$9,415>	$48,508
    401K Withdrawal					$102,556
    				Total Back Pay Damages	$539,119

89. However, Petitioner's damages would have terminated upon his stroke in March 1995. At that time, Petitioner was no longer qualified for employment with Respondent due to his uncontrolled high blood pressure. However, Petitioner would have received $5500.00 in disability benefits because of his

    stroke.

    
    

    CONCLUSIONS OF LAW

    
    

90. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes.

91. A petitioner claiming race discrimination based n disparate treatment bears the ultimate burden of proving that race was a determining factor in the employer's decision to take adverse action against him. United States Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711 (1983); Nix v. WLCY

    Radio/Rahall Communications, 738 F.2d 1181 (11th Cir. 1984). "Title VII does not award damages against employers who cannot prove a non-discriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of . . . race." St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L.ED.2d 407,

    427 (1993).

    
    

92. The United States Supreme Court has developed a three- step process for evaluating race discrimination. See McDonnell

    Douglas Corp v. Green, 411 U.S. 792 (1973). The petitioner must

    
    

    first establish a prima facie case of racial discrimination by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If a prima facie case of discrimination is established, the employer must then rebut by producing evidence of a legitimate, non-discriminatory reason for its challenged actions. Id. at 254. Once the employer satisfies its burden of production, the burden then falls on the petitioner to prove by a preponderance of the evidence that the employer's articulated reasons were not the real reasons, but were merely a pretext for discrimination. Id. at 253.

    Throughout this procedure, "[t]he ultimate burden of persuading the trier of fact that the [respondent] intentionally discriminated against [the petitioner] remains at all times with the [petitioner]." Id. (citing Board of Trustees of Keene

    State College v. Sweeney, 439 U.S. 24, 25, n.2 (1978)). It is never the employer's burden to prove the absence of discriminatory motive. Sweeney, 439 U.S. at 25.

93. Here, Petitioner has not established a prima facie case of discrimination. Petitioner was discharged because he violated written safety policies and procedures of which he was aware, accumulating 24 points within one year. Each safety violation was preventable and serious. The discipline was reasonable.

94. Assuming, for the sake of argument, that Petitioner has established a prima facie case, Respondent has nonetheless articulated a legitimate, non-discriminatory reason for terminating his employment. Respondent's business justification of safety violations for terminating Petitioner wholly rebuts any prima facie case which might have been created by Petitioner's allegations of discrimination. See Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1143 (5th

    Cir. 1981). Petitioner must now prove that Respondent's articulated reason was a pretext for intentional race discrimination. See Burdine, 450 U.S. at 253. Petitioner carries the ultimate burden of persuading the Court that: (1) Respondent's stated justification is false, and (2) that Respondent intentionally discriminated against him and the discrimination was based on his race. Hicks, 113 S. Ct. at

    2754; United Postal Serv. Bd of Governors v. Aikens, 460 U.S. 711, 176 (1983); McKeon v. Vaicaitis, Schorr, Richards, 825 F.

    Supp. 290 (M.D. Fla. 1993).

    
    

95. Under the McDonnell-Douglas/Burdine procedure, it is

    
    

    incumbent upon Petitioner, to designate "specific facts" to establish that Respondent's articulated reason for his termination is a pretext for intentional race discrimination. See Matsushita Electric Indus. Co. Ltd. v. Zenith Radio Corp.,

    475 U.S. 574, 587 (1986); Slaughter v. Allstate Inc. Co., 803

    F.2d 857, 860 (5th Cir. 1986). The mere fact that a bare prima

    
    

    facie case has been made out is not in itself sufficient to establish pretext. Howard v. BP Oil Co., Inc., 32 F.3d 520, 526 (11th Cir. 1994). To create a question resolvable only by the trier of fact, Petitioner must present "substantial evidence" that Respondent's stated reason was false and that the conduct was really intentional discrimination. Id. at 525; Cooper- Houston v. Southern Ry Co., 37 F.3d 603, 605 (11th Cir. 1994).

96. The law is well settled that sporadic alleged discriminatory remarks by a non-decision maker, such as co- employees raise no inference of discrimination and are insufficient to establish discrimination. In the concurring option in Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989), Justice O'Conner admonished the plaintiffs that it would not be possible to raise an inference of discrimination by relying on "statements by nondecisionmakers." See, e.g., Wilde v. Florida Pneumatic Mfg. Corp., 941 F. Supp. 1203, 1206-07 (S.D. Fla. 1996) (stray comments by nondecisionmakers do not support prima facie case of discrimination); Slather v. Sather Trucking Corp.,

    78 F.3d 415, 419 (8th Cir. 1994) ("Statements by nondecisionmakers are not direct evidence of discriminatory motive."); Ambruster v. Unisys Corp., 32 F.3d 768, 779 (3d Cir. 1994) (same); Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526,

    531-32 (10th Cir. 1994) (same).

97. Like Petitioner, Tommy Jordan, a white driver, was automatically terminated for violations of the safety program; he also accumulated 24 points within one year and was discharged. The evidence also showed minority employees, including Petitioner, receiving similar treatment as non- minority employees.

98. Furthermore, to be probative of discrimination, there must be a causal connection between the remark at issue and the employment decision. Hopkins, 490 U.S. at 227 (statements unrelated to the decision itself do not suffice to satisfy the plaintiff's burden of proof); Brown v. CSC Logic, Inc. 82 F.3d 651, 655 (5th Cir. 1996) (comments must be [race] related, proximate in time to the decision in issue, made by the person with authority over employment decisions, and related to the employment decisions at issue to be probative of discrimination); Nichelson v. Quaker Oats Co., 725 F.2d 1153, 1160 (6th Cir. 1985) (plaintiff must establish causal linkage or causative effect between racial slur and the plaintiff's specific claims against the employer), vacated on other grounds,

    472 U.S. 1004 (1985); Rush v. McDonald's Corp., 966 F.2d 1104,

    
    

    1116 (7th Cir. 1992) (requiring that racial remarks be "related to the employment decision in question" in order to suffice as evidence of racial animus in a disparate treatment claim).

99. The alleged comments by Ms. Dinnes do not meet this standard because they were wholly unrelated to the decisions regarding the April and October 1993 incidents or the decision to terminate Petitioner. The comments allegedly made by Ms. Dinnes were not made to Petitioner or communicated to the safety department or Mr. Cleyman, and were allegedly made nearly a year before he was discharged. In addition, Petitioner was terminated pursuant to a written company policy providing that a driver who accumulates 24 points within one year is automatically discharged.

100. In addition to the fact that the alleged comments were unrelated to Petitioner's termination, even occasional or isolated racial comments by a decision maker do not establish discrimination. See, e.g., Brown, 82 F.3d at 655; Cone, 14 F.3d at 531-32; Torres v. County of Oakland, 758 F.2d 147, 152 (6th

     Cir. 1985); see also Johnson v. Richmond County, 507 F. Supp. 993, 996 (S.D. Ga. 1981) ("While [racial epithets], at an excessive and opprobrious level, may constitute unlawful employment practices under Title VII, isolated [racial] epithets do not."). Even if Ms. Dinnes' comments were made, two or three isolated remarks are not enough to satisfy Petitioner's burden of establishing that race was a factor in the decision to discharge him or to prove pretext.

101. The appropriate focus is whether Respondent's reason for the adverse employment action was a non-discriminatory reason. It is not Respondent's burden to prove the absence of a discriminatory motive. Board of Trustees of Kenne State College v. Sweeney, 439 U.S. 24, 25 (1978). The burden always remains

     with Petitioner. In this case Petitioner has not established that he was the victim of an unlawful employment practice by disparate treatment.

102. In order to establish liability based upon a claim of disparate impact, "a plaintiff must first demonstrate that a challenged employment action or practice has a disproportionate adverse impact on a category of persons protected by the statute." Fitzpatrick v. City of Atlanta, F.3d 1112, 1117 (11th Cir. 1993) (citing Connecticut v. Teal, 457 U.S. 440, 446, 102 S. Ct. 2525, 253073 L.Ed.2d 130 (1982), Dothard v. Rawlinson,

     433 U.S. 321, 329, 97 S. Ct. 2720, 2726-27, 53 L.Ed.2d 786

     
     

     (1977)). Discriminatory intent is not a factor. If a plaintiff fails to present evidence showing that there is a statistically significant disproportionate impact on blacks, he fails to make out a prima facie case of disparate impact discrimination, and the defendant is entitled to summary judgment as a matter of law. Id. at 118 (citing Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1525 (5th Cir. 1993)). Petitioner has offered no expert testimony on any appropriate statistical analysis of

     Respondent's workforce. Moreover, the sample submitted demonstrated that the sample members were different from Petitioner's case. The evidence was insufficient to draw a reliable and valid inference of disparate impact.

103. The undisputed statistical evidence refutes Petitioner's disparate impact claim. From 1990 to August 1997, Respondent employment 1,510 drivers, of which 283 (18.7 percent) were black and 1,124 (74.4 percent) were white. During this period, Respondent terminated 169 drivers for violations of its safety program. Of the 169 drivers discharged for safety violations, 32 (18.9 percent) were black and 131 (77.5 percent) were white. The evidence establishes that the percentage of black drivers terminated for safety violations (18.9 percent) is nearly identical to the percentage of black drivers employed by Respondent (18.7 percent). In comparison, the percentage of white drivers discharged for safety violations (77.5 percent) actually exceeds the percentage of white drivers employed by Respondent (74.4 percent). In this case, the uncontroverted evidence shows that there is no adverse impact on black drivers in terminations under the safety program. Therefore, Petitioner cannot make out a prima facie case of disparate impact discrimination, and Respondent is entitled to dismissal of this action.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

Final Order finding Respondent not guilty of committing an unlawful employment practice and dismissing the Petition For Relief.

DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000.

COPIES FURNISHED:

Davisson F. Dunlap, Jr., Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Drawer 190

Tallahassee, Florida 32302-0190

John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601

Harriett W. Williams Esquire Henry, Buchanan, Hudson,

Suber & Carter, P.A. Post Office Drawer 1049

Tallahassee, Florida 32302

J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber

& Williams, P.A.

Post Office Drawer 1049 Tallahassee, Florida 32302

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel 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 within

15 days from the date of 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: 96-003596

Orders for Case No: 96-003596