vs. ) Case No. 99-4035
Respondent. )
Daniel Manry, Administrative Law Judge ("ALJ"), Division of Administrative Hearings ("DOAH"), conducted the administrative hearing in this proceeding on December 9, 1999, in Orlando, Florida. The parties, witnesses, and court reporter attended the hearing in Orlando. The ALJ participated by videoconference from Tallahassee, Florida.
For Respondent: John M. Finnigan, Esquire
Garwood, McKenna, McKenna and Wolf, P.A.
The issue in this case is whether Respondent discriminated against Petitioner on the basis of race and national origin, for the reasons stated in the Charge of Discrimination and Petition for Relief, in violation of Section 760.10(1), Florida Statutes
(1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the "Commission") on June 28, 1996. Within 180 days, the Commission did not make a determination regarding Petitioner's charge of discrimination.
On August 7, 1999, the Commission issued a Notice of Determination: No Cause. On September 7, 1999, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On September 27, 1999, the Commission referred the matter to DOAH to conduct an administrative hearing.
At the hearing, Petitioner testified and submitted one exhibit for admission in evidence. Respondent called one witness and submitted 18 exhibits for admission in evidence.
The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing filed on February 14, 2000. Petitioner did not file a proposed recommended order ("PRO"). Respondent timely filed its PRO on February 24, 2000.
Petitioner is a member of a protected class. Petitioner is Haitian and African-American. Respondent employed Petitioner up to the time of the alleged discrimination.
On January 30, 1995, Respondent conducted a plant-wide meeting to introduce, distribute, and explain a new edition of Respondent's employee handbook (the "handbook"). The policies
and procedures contained in the handbook, including a new attendance policy, became effective on February 1, 1995.
Petitioner attended the plant-wide meeting along with Respondent's other employees. Respondent gave each employee at the meeting, including Petitioner, a copy of the handbook.
Petitioner never indicated to anyone that he did not understand the contents of the handbook. Petitioner never asked any questions concerning the contents of the handbook, including the new attendance policy.
Petitioner signed an acknowledgment of receipt form dated January 30, 1995. By signing the form, Petitioner agreed he had received and read the handbook and understood its contents, including the new attendance policy.
Respondent's office and personnel manager (the "office manager") explained to the employees in attendance at the plant- wide meeting that they could take up to one week to review the handbook and sign and return the acknowledgment form to her. Petitioner chose not to use the allotted week.
Respondent used a majority of the time at the plant-wide meeting to explain the new attendance policy contained in the handbook. The new attendance policy adopted a no-fault point system intended to implement an objective, non-discretionary attendance policy that eliminated employee excuses and management discretion concerning employee absences.
The new attendance policy assessed each employee a prescribed number of points that ranged from a half point to five points for each absence or tardy attendance depending on the
nature of the absence or tardiness. The points prescribed for each type of offense were based solely on each employee's timecard. Supervisors had no discretion in the assessment of points or the implementation of discipline for excessive points.
The attendance policy imposed three tiers of a progressive discipline plan based on accumulated points. The progressive discipline required a written warning when an employee accumulated five points for absences or tardiness within a six-month period. If an employee accumulated eight points within a six-month period, the progressive discipline plan required a second written warning and an hourly reduction in pay rate for a prescribed period. If an employee accumulated 10 points within a six-month period, the progressive discipline plan required termination of employment.
The office manager calculated each employee's accumulated points each week when the office manager calculated the payroll due each employee. The office manager reviewed each employee's timecard to verify attendance and tardiness. When the office manager determined a particular employee had reached any one of the three tiers prescribed in the progressive discipline plan, the office manager implemented the prescribed discipline.
Prior to March 13, 1995, Petitioner accumulated 5.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated two points each for two absences on February 17 and March 3, 1995, for a total of four points for absences, and accumulated a half point for each
of three tardy attendances on February 21 and March 6 and 9, 1995, for a total of 1.5 points for tardy attendances.
On March 13, 1995, the office manager issued a first written warning to Petitioner in accordance with the requirements of the progressive discipline plan prescribed in the attendance policy. Petitioner's supervisor discussed the first written warning with Petitioner. Petitioner signed the written warning on March 14, 1995.
Prior to April 26, 1995, Petitioner accumulated 8.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated one half point each for two tardy attendances on March 14 and April 3, 1995, for a total of one point for tardiness, and accumulated one point each for two absences on April 4 and 26, 1995, for a total of two points for absences. Between February 17 and April 26, 1995, Petitioner accumulated 8.5 points for absences and tardiness.
On April 26, 1995, the office manager issued a second written warning to Petitioner and reduced Petitioner's hourly rate of pay by one dollar for four weeks. Petitioner's supervisor discussed the second written warning with Petitioner, but Petitioner refused to sign the second written warning.
Company policy required an employee's supervisor to involve a second manager whenever an employee refused to sign a written warning to ensure that the employee understood the disciplinary warning and to provide a witness to the employee's refusal to sign. When Petitioner refused to sign the second written warning, Petitioner's supervisor included the office
manager to ensure that Petitioner understood the disciplinary action and in fact received the written notice of the disciplinary action.
Prior to June 29, 1995, Petitioner accumulated 10 points pursuant to the terms of the new attendance policy. Petitioner accumulated one half point for a tardy attendance on May 2, 1995, and one point for being more than one hour late on June 28, 1995. Between February 17 and June 28, 1995, Petitioner accumulated 10 points in accordance with the new attendance policy.
On June 28, 1995, the office manager issued a third written notice of disciplinary action to Petitioner. Respondent terminated Petitioner's employment in accordance with the terms of the disciplinary plan prescribed in the attendance policy.
Between 1994 and 1995, Respondent terminated 12 employees including Petitioner. Three of the terminated employees were Caucasian, three were Hispanic, three were African-American, one was Asian American, one was American Indian, and Petitioner was Haitian.
On June 28, 1996, Petitioner signed and dated a Charge of Discrimination. The Charge of discrimination alleges that Respondent discriminated against Petitioner on the basis of race and national origin when Respondent terminated Petitioner's employment on June 28, 1995.
Petitioner did not file the Charge of Discrimination with the Commission within 365 days of the alleged violation. Petitioner did not file the Charge of Discrimination in person in
Tallahassee, Florida on the date he signed the document. Rather, Petitioner mailed the Charge of Discrimination on June 28, 1996, from Orlando, Florida to Tallahassee.
The record evidence does not show when the Charge of Discrimination was actually filed with the Commission. However, the actual date of filing is not material. Counting June 29, 1995, as the first day of the 365-day filing period, 366 days elapsed from June 29, 1995, through June 28, 1996, because February 1996 contained 29 days. Even if February 1996 contained only 28 days, Petitioner testified that he mailed the Charge of Discrimination on the 365th day. Therefore, Petitioner could not have filed the Charge of Discrimination within 365 days of the alleged discrimination on June 28, 1995.
The Commission failed to determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date that Petitioner filed the Charge of Discrimination. If the Charge of Discrimination was filed five days after Petitioner mailed it on June 28, 1995, the Charge of Discrimination was filed on July 3, 1996. Section 760.11(3) required the Commission to issue its determination of cause no later than December 30, 1996.
Contrary to the statutory requirements of Section 760.11(3), the Commission did not make any determination of reasonable cause regarding the Charge of Discrimination within
180 days from either June 28 or July 4, 1996. Nor did the Commission make any such determination within 1,120 days from
June 28 or July 3, 1996. The Commission issued a Notice of Determination: No Cause on August 2, 1999.
Petitioner did not timely file his request for hearing. When the Commission failed to determine reasonable cause no later than December 30, 1996, Petitioner had 35 days thereafter, or no later than February 3, 1997, to request an administrative hearing in accordance with Sections 760.11(4) and 760.11(7). Petitioner filed his request for hearing when he filed his Petition for Relief on September 7, 1999, approximately 945 days after February 3, 1997.
On August 2, 1999, the Commission issued a Notice of Determination: No Cause. Assuming arguendo that the 35 days prescribed in Section 760.11(7) required Petitioner to file his request for hearing within 35 days of August 2, 1999, Petitioner still did not file a request for hearing within 35 days of August 2, 1999. Counting August 3, 1999, as the first day, the 35th day was September 6, 1999. Petitioner filed his Petition for Relief, in which he requested an administrative hearing, on September 7, 1999, the 36th day after August 2, 1999.
Petitioner did not file his request for hearing within
35 days of either August 2, 1999, or February 3, 1997. Petitioner's claim is barred. Section 760.11(7) expressly provides, in relevant part:
If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative hearing. Section 120.57(1).
On October 14, 1999, Respondent filed a motion for recommended order of dismissal for lack of jurisdiction. The motion argues that the Charge of Discrimination and request for hearing were untimely filed and that the undersigned and the Commission lack jurisdiction. The undersigned reserved ruling on the motion for disposition in this Recommended Order.
Respondent's motion to dismiss the Charge of Discrimination and request for hearing is granted. For reasons stated in the Findings of Fact and incorporated herein by this reference, Petitioner failed to file either the Charge of Discrimination or the request for hearing within the time prescribed by statute.
Petitioner failed to timely file the Charge of Discrimination. Section 760.11(1), in relevant part, authorizes Petitioner to file a Charge of Discrimination within 365 days of the alleged violation on June 28, 1996. Petitioner did not file the Charge of Discrimination within 365 days of June 28, 1995. Petitioner filed the Charge of Discrimination, at the earliest,
367 days after June 28, 1995. Neither the undersigned nor the Commission has any authority to extend the statutory period prescribed by the legislature in Section 760.11(1) by considering a claim filed more than 365 days from June 28, 1995.
Petitioner failed to timely file his Petition for Relief containing his request for hearing. Section 760.11(7), in relevant part, requires Petitioner to file his request for hearing within 35 days of the date the Commission issues its determination of reasonable cause. If the Commission violates the statutory mandate in Section 760.11(3) by failing to issue a determination of reasonable cause within 180 days of the date Petitioner files the Charge of Discrimination, Petitioner may nevertheless request an administrative hearing but must do so within 35 days after the last day in the 180-day period. Section 760.11(7) and (8). See also Lewis v. Conners Steel Co., 673 F.2d 1240, 1242 (11th Cir. 1982) (holding there is no reason why a plaintiff should enjoy an open-ended extension of time which renders the statutory time limitations meaningless).
The last day of the 180-day period was February 3,
1997. Petitioner did not file his request for hearing until September 7, 1999. Petitioner's request for hearing was approximately 945 days late.
There is no reason why Petitioner should enjoy an extension of the statutory time limitations because the Commission failed to complete its investigation and issue its determination of reasonable cause within the time prescribed by statute. The time limitations prescribed in Section 760.11(3), (7), and (8) are not subject to extension or manipulation for administrative convenience of state agencies. Cf. Conners Steel Co., 673 F.2d at 1242 (there is no reason why a plaintiff should
enjoy a manipulable open-ended time extension which renders the statutory time limitations meaningless).
Assuming arguendo that the 35-day period did not begin to run until August 2, 1999, when the Commission issued its Notice of Determination: No Cause, Petitioner did not file his request for hearing within 35 days of August 2, 1999. Rather, Petitioner filed his request for hearing on the 36th day after August 2, 1999.
Even if Respondent's motion to dismiss were denied, it does not change the outcome of this case. Petitioner failed to satisfy his burden of proof.
Section 760.10(1), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's race or national origin. Chapter 760, entitled the Florida Human Relations Act (the "Act"), adopts the legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section 2000e et seq. (the "ADA").
The law affords no protection from discrimination unless Respondent engages in an adverse employment action. Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985). Respondent engaged in an adverse employment action when Respondent terminated Petitioner's employment. The remaining issue is whether Respondent engaged in the adverse employment action because of Petitioner's race or national origin.
Petitioner submitted no direct evidence of the alleged discrimination. In the absence of such evidence, Petitioner must provide sufficient inferential evidence of the alleged discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas v. Green, 411 U.S. 792 (1973).
The initial burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy his burden of proof by a preponderance of the evidence. Section 120.57(1)(g).
Petitioner must establish a prima facie case of discrimination. Rosenbaum v. Souhtern Manatee Fire and Rescue District, 980 F.Supp 1469 (M.D. Fla. 1997); Andrade v. Morse Operations, Inc., 946 F.Supp 979, 984 (M.D. 1996). Petitioner must show by a preponderance of evidence that: he is a member of a protected class; he suffered an adverse employment action; he received disparate treatment from other similarly situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between his race or national origin and the disparate treatment. Id. Failure to establish the last prong of the conjunctive test is fatal to a claim of discrimination. Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996); Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).
Petitioner made a prima facie showing that he is a member of a protected class and that he suffered an adverse employment action. However, Petitioner failed to make a prima facie showing that he received dissimilar treatment from individuals in a non-protected class; that there was any bias against Petitioner; or that, even if evidence of bias did exist, it was sufficient to infer a causal connection between Petitioner's race or national origin and the alleged disparate treatment.
Petitioner failed to show any dissimilar treatment between him and individuals in a non-protected class. Rather, the evidence showed that Respondent gave similar treatment to those in a non-protected class by terminating their employment in a manner similar to the termination of Petitioner's employment.
If Petitioner had satisfied his burden of establishing a prima facie case of discrimination, an inference would have arisen that the adverse employment action was motivated by a discriminatory intent. Burdine, 450 U.S. at 254-255. The burden would have then shifted to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id.
Even though Respondent was not required to do so, Respondent articulated a legitimate, non-discriminatory reason for its action. Respondent terminated the employment of Petitioner based on an attendance policy that Respondent applied equally to all employees.
Once Respondent successfully articulates a non- discriminatory reason for its action, the burden shifts back to
Petitioner to show that the proffered reason is a pretext for unlawful discrimination. Petitioner must provide sufficient evidence to allow a reasonable fact-finder to conclude that the proffered reason is not the actual motivation for the adverse employment action. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998).
Petitioner may show that Respondent's articulated reason is a pretext: by showing that the non-discriminatory reason should not be believed; or by showing that, in light of all the evidence, discriminatory reasons more likely motivated the decision than the proffered reason. Id. Petitioner did neither. Petitioner failed to present a scintilla of evidence showing that Respondent either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.
RECOMMENDED that the Commission enter a Final Order finding that Respondent did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2000.
Dana A. Baird, General Counsel Florida Commission on Human Relations
John M. Finnigan, Esquire Garwood, McKenna, McKenna
and Wolf, P.A. Post Office Box 60
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.
