STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LONNIE MCMILLON, )

)

Petitioner, )

)

vs. )

) MACTAVISH FURNITURE INDUSTRIES, )

)

Respondent. )

Case No. 00-2315

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on February 19, 2001, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lonnie McMillon, pro se

Post Office Box 231 Gretna, Florida 32332

For Respondent: Daniel F. Piar, Esquire

James H. Coil, III, Esquire Kilpatrick, Stockton, LLP 1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309-4530 STATEMENT OF THE ISSUE

Whether Respondent's working conditions or termination of Petitioner as its employee on July 12, 1996, constitutes

unlawful employment practices based on Petitioner's race

(African-American)?

PRELIMINARY STATEMENT

Subsequent to a "Determination: No Cause," by the Florida Commission on Human Relations, Petitioner timely filed a Petition for Relief, which was referred to the Division of Administrative Hearings on or about July 7, 2000.

The history of pleadings, discovery, orders and pre-trial compliance, or lack thereof, is documented in the case file.

At the disputed-fact hearing on February 19, 2001, Petitioner presented the oral testimony of Benjamin McMillon and testified on his own behalf. Respondent presented the oral testimony of Mark Maxwell and had seven of nine exhibits admitted in evidence. Respondent's Exhibit 10, an affidavit of Herschel Shepard, deceased, was accepted, but a ruling on its admission in evidence, vel non, was reserved subject to argument within Respondent's proposed recommended order.

A Transcript was filed on March 19, 2001. Both parties have filed proposals which have been considered.

Upon consideration, Respondent's Exhibit 10 is not admitted and has not been considered.1

FINDINGS OF FACT

1. Petitioner is a Black male.2

2. Petitioner's Charge of Discrimination before the Florida Commission on Human Relations is not before the undersigned because it was not included in the referral package nor admitted in evidence. The Petition for Relief vaguely alleged "harassment" and clearly asserted termination on the basis of race - "Black." 3

3. Petitioner was employed by Respondent in its Quincy, Florida, furniture manufacturing plant from January 25, 1983, to July 12, 1996, when he was terminated.

4. Most, but not all, of Respondent's employees are Black.

   
   

   Petitioner was replaced by another Black male, William Baker.

   
   

5. The decision to terminate Petitioner, as well as the decision to promote Mr. Baker into the position vacated by Petitioner, was made by Hershel Shepard, plant manager.

   Mr. Shepard, who died before the evidentiary hearing, was white.

   
   

6. The plant manager is the highest-ranking person in the factory.

7. Petitioner was initially hired in 1983 as a double- ended tendon (D.E.T.) machine operator.

8. A D.E.T. machine is a wood-working machine which cuts off two opposite ends of a board at the same time. It requires pre-setting, and it throws out debris and sawdust which is hazardous to employees' eyes.

9. The factory also utilizes other types of wood-working equipment, all of which throw out debris and sawdust which are hazardous to employees' eyes.

10. On January 25, 1983, his hiring date, Petitioner received written safety rules requiring him to wear safety glasses at all times. On May 1, 1986, he signed for an updated set of similar rules.

11. In 1988, Petitioner was promoted to D.E.T. "lead hand," with two or three employees subordinate to him.

12. Petitioner was uniquely valuable to Respondent because he was the only person in the factory who knew how to adjust the

    D.E.T. machine. That is, he was the only person who knew how to set it up to do specific tasks. However, other employees could run the D.E.T. machine after Petitioner had, in essence, "programmed" it.

13. In 1991, Petitioner hurt his back and was required by his orthopedic physician to wear a back support belt when lifting. He did not go out on workers' compensation leave/pay, but continued to report for work and was given time off to go to therapy. At some point, Petitioner and Mr. Shepard had a dispute about how the belt was supposed to be worn, and

    Mr. Shepard threatened to "write-up" Petitioner. There is no evidence that Petitioner was, in fact, "written-up" for this.

14. On May 5, 1991, after his back injury, Petitioner was evaluated by Mr. Shepard to the following effect: that he could do the job, but perhaps not as fast as it should be done; that he had a problem keeping his machines running and coordinating loads; that he did "okay" on instructions, but that he had lost his initiative to get the job done and to take an interest in new products; and that he needed to improve his work habits.

15. Mark Maxwell, a white male, supervised Petitioner for two to three months immediately prior to Petitioner's next promotion in 1993. Mr. Maxwell could not get Petitioner to produce the furniture parts from the D.E.T. machine when they were needed. According to Mr. Maxwell, Petitioner's cooperation and/or output fluctuated. Sometimes, Mr. Maxwell ordered Petitioner to run certain parts and the parts were not run. On one occasion, he had ordered Petitioner to run drawer fronts, and Petitioner set up to do another type of piece.

16. Nonetheless, Petitioner was promoted to D.E.T. supervisor in approximately 1993. As such, Petitioner regularly supervised four employees.

17. Mr. Shepard may or may not have had input as to Petitioner's first promotion in 1988, but it was solely his decision to promote Petitioner in 1993. Petitioner was promoted at that time, despite the unfavorable aspects in his employment record.

18. Petitioner continued to have disciplinary problems with management after his 1993 promotion.

19. On October 2, 1995, Mr. Maxwell, by then a middle- manager, wrote-up Petitioner because, knowing a particular type of pine chest of drawers was to go on the assembly line the next day, Petitioner allowed his crew to go home at the regular quitting time of 4:00 p.m., showing very little regard or devotion to Respondent employer. Employees often were required to work overtime on short notice in order to set up for the next day. Petitioner's failure to have the furniture parts ready from the D.E.T. machine the night before would cause several employees to stand around, drawing pay, with no assembly line work to do the next morning. Mr. Maxwell, who personally has worked overtime on short notice, considered working overtime on short notice to be part of the furniture-making business, and he expected that commitment from all Respondent's employees, including Petitioner and Petitioner's subordinates. Mr. Sheperd approved the write-up.

20. Sometime in 1995, Petitioner was suspended without pay for three days as the result of damaging a bookcase and not repairing it. Petitioner contended at hearing that he had repaired the bookcase's top.

21. At hearing, Petitioner acknowledged receiving two written warnings concerning his repeated failure to wear safety

    glasses on the job. One warning was undated. The other was dated March 25, 1996, and signed by Mr. Shepard. It specified that Petitioner had previously been warned in writing on September 18, 1995, October 2-3, 1995, and November 17, 1995, and that Mr. Shepard had warned Petitioner orally on each of the six consecutive days immediately preceding the March 25, 1996, written warning.

22. At hearing, Petitioner did not refute the accuracy of the March 25, 1996, warning or claim its content was untrue. He also acknowledged that he was supposed to wear safety glasses at all times on the job and that as D.E.T. supervisor, he was supposed to be an example to his subordinates.

23. Petitioner claimed to have seen white employees not wearing safety glasses, but there was no corroborative evidence that this was so. Petitioner also claimed that white employees who did not wear safety glasses were never written-up, but there was no corroborative evidence that this was so or any explanation of how Petitioner would know if any other employee had been warned or written-up for any reason, including but not limited to wearing safety glasses.

24. In 1996, Petitioner's job as D.E.T. supervisor was basically to report to work, receive a list specifying the furniture parts (such as drawers or front rails) which he was to "run" on his machine(s), and run/create those listed parts.

25. Sometimes, Petitioner disagreed with the order of parts as listed by his supervisors because, in his opinion, the list could have been better organized to ensure maximum efficiency at subsequent points on the furniture assembly line.

26. Petitioner blamed the list and felt he was unfairly blamed by his supervisors when assemblers ran out of all parts they needed or they ran out of Part A pieces before they ran out of Part B pieces.

27. Other recurring job problems from Petitioner's point of view were that the night crew broke his machine and/or would not set-up so that he could immediately start work when he came on the premises with the day crew each morning and that his FT01 machine was old and its settings would slide, making mistakes on cutting or forming wooden furniture parts out of round or in slightly flawed lengths and shapes.

28. Mr. Maxwell confirmed only that some machines were old and that sometimes it was hard to get parts for the machines.

    He reiterated that Petitioner's conduct and output fluctuated.

    
    

29. Management viewed it as Petitioner's job duty to run the correct furniture parts to the correct specifications, in the correct order, so that the correct size and shape of the correct type of part arrived at the next stage of the assembly line in sufficient quantities, at the right time, without delay.

30. According to Petitioner, his troubles with Mr. Shepard began on an unspecified date when Petitioner had been ordered to run some impounds. Because he was short-handed due to two absentees, Petitioner requested help, and the machine room foreman promised to send Petitioner two helpers as soon as he could. Mr. Shepard saw that Petitioner was not working and demanded to know why Petitioner was not running the impounds. Petitioner explained that he was waiting for two more laborers. Then Mr. Shepard demanded, "Bubba, why you not running the machine?" Petitioner replied, "Herschel, you know, I would appreciate it if you wouldn't call me Bubba. My name is Lonnie." Mr. Shepard walked off without a word. Petitioner contended that thereafter, Mr. Shepard "harassed" him; however, Petitioner conceded that Mr. Shepard never again addressed him as "Bubba."4

31. Petitioner was terminated with abusive and profane language by Mr. Shepard on July 12, 1996. Mr. Shepard stated on Petitioner's termination papers that Petitioner had cut an entire run of bases one inch shorter than the 22-3/8 inches they were supposed to have been cut and that there was no more rough lumber in the plant with which to run more bases.

32. In testimony, Petitioner stated that he believed he had correctly set his machine to cut the bases the correct length and that he had run about 200 bases correctly and someone

    else ran 900 incorrectly. However, he could not "remember whether I had run just enough to get them started that morning or someone else ran the load." He conjectured that the night shift might have run the incorrect bases, but he could not remember either way whether there had been, or had not been, a night shift in 1996. Petitioner also believed there had been available enough rough lumber to run a new load.

33. Mr. Maxwell acknowledged the possibility that someone other than Petitioner could have run the useless bases, but he testified that he knew there had been no night shift in July 1996. Therefore, the night shift could not have been responsible for running the useless bases.

34. Although Petitioner did not know whether or not he had personally cut the load short, he conceded that as D.E.T. supervisor, he was responsible for overseeing his suborindates' work on the machine.

35. Petitioner's brother, Benjamin, also worked for Respondent in 1996, the year Petitioner was terminated, and for some unspecified period of time before that. In Petitioner's and his brother's opinions, working conditions in Respondent's factory were those of a "concentration camp," because of poor wages, because people were spoken to "as if they were not human," and because no one was given a day off.

36. However, Benjamin McMillon described being let off early when he requested it, and both Petitioner and Mr. Maxwell described an incentive pay plan based on being paid more money for producing more product.

37. Benjamin McMillon described employees, including one white woman, who feared Hershel Shepard's power over them and who feared that Hershel Shepard might terminate them.

38. The following exchange, at pages 36-37 of the Transcript, sums up Petitioner's testimony as to the effect of his race on conditions at Respondent's factory:

    Q: You don't have any evidence that anything that happened between you and Mr. Hershel Shepard happened because you were black; is that right?

    
    

    A: No, but I know he was harassing me.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.

40. Pursuant to Section 760.10(1)(a), Florida Statutes, it is an unlawful employment practice for an employer:

    To discharge . . . or otherwise discriminate against any individual, . . . because of such individual's race. . . .

    
    

41. Respondent is an "employer", pursuant to Section 760.02(7), Florida Statutes.

42. The Florida Civil Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 52 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579

    So. 2d 788 (Fla. 1st DCA, 1991).

    
    

43. In Department of Corrections v. Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Civil Rights Act. In that case, the court noted as follows:

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . . , by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. (Citations omitted) Id. at 1821 n. 2.

    
    

44. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    1. Petitioner is a member of a protected class;

    2. The employee is qualified to remain in his position;

    3. The employee was subject to an adverse employment decision (Petitioner was terminated);

    4. The position was filled by a white person; and

    5. There must be shown by the evidence that there is a causal connection with a. and c. (Canino v. EEOCU, 707 F.2d 468, 32 FEP Cases

       139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 35 FEP Cases 22 (11th Cir. 1984).

       
       

45. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the plaintiff's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358, and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S.

    567, 576 (1978).

46. Once a plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248 at 257 (1981).

The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. At 254-

255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

1. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner, who must prove that the reason offered by the employer for its decision is not the true reason but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

2. In Burdine, the Supreme Court emphasized that the

   
   

   ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in

   St. Mary's Honor Center v. Hicks, 509 U.S., 502, 113 S. Ct. 2742

   
   

   (1993).

   
   

3. Herein, Petitioner established that he is an African- American, and thus, a member of a protected class.

4. Herein, Petitioner and his brother painted a picture of a harsh work environment in which all races feared and/or disliked the plant manager. A work environment that is harsh for all employees is not an unlawful employment practice under the statute.

5. Petitioner established no nexus to his race which would account for his being written-up for not wearing his safety glasses, disciplined for breaking furniture, reprimanded for not coordinating his machines' work with subsequent parts of the assembly line, or for being evaluated as too slow and unenthusiastic. Petitioner did not establish that white employees were treated any differently.

6. Mr. Shepard's use of the appellation, "Bubba," in addressing Petitioner appears to have been a one-time occurrence. Although its one-time use may have seemed

   "harassing" to Petitioner, an employee's overly-sensitive reaction does not constitute an unlawful employment practice.

7. Objectively, "Bubba," is neither a pejorative nor racially-motivated term. Assuming arguendo, but not ruling, that it has some racial connotation, there is no proof it is derogatory, and a single, isolated use of derogatory terminology does not amount to a hostile workplace. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed. 662 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367,

   126 L.Ed. 295 (1993).

   
   

8. Finally, Mr. Shepard's voluntarily ceasing to use the term, "Bubba," immediately upon being asked to cease using it by Petitioner is a clear indicator that, if anything, Mr. Shepard was accommodating Petitioner's sensitivities.5 In light of his personally promoting Petitioner before the complained-of remark, the remark also cannot be interpreted as racial animus or as motivation for Mr. Shepard's subsequent actions with regard to Petitioner.

9. Petitioner was terminated for cause. That cause was articulated within termination documents as his failure to properly turn out the furniture parts required of him. Petitioner did not know whether he did, or did not, run the 900 flawed furniture pieces, but the evidence affirmatively shows there was no night shift to blame. Petitioner did not claim

   that there was anything wrong with the machine that day. Even if Petitioner's four subordinates ran the wrong pieces, their performance was Petitioner's responsibility.

10. Regardless of whether or not Petitioner was personally or vicariously at fault on that occasion, he cannot prevail. Florida is an "employment at will" state. An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. See Nix v. WLCY Radio

    Rahall Communications, 738 F.2d 1181 at 1187 (11th Cir. 1984). See also Loeb v. Textron, Inc., 1600 F.2d 1003 (1st Cir. 1979).

11. Petitioner established no racial animus for his on- the-job treatment or for his termination, and Petitioner was not replaced by a person of a different race. Therefore, Petitioner has not proven two elements of a prima facie case.

12. Alternatively, Respondent has articulated non- discriminatory reasons for each of its disciplinary actions and for the termination complained-of, which reason(s) have not been shown by Petitioner to be pretextual.

13. At whichever stage the precedential test is applied, Petitioner has failed to carry his burden of proof. See Conward

    v. Cambridge School Committee, 171 F.3d 12, C.A. 1 (Mass) 1999.

14. At whichever stage the test is applied, Petitioner candidly admitted he had no evidence that anything that happened, was because of his race.

15. The Petition for Relief should therefore be dismissed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order denying all claims and dismissing the Petition for Relief.

DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 April, 2001.

ENDNOTES

1/ To the extent that the affidavit can be used to supplement or explain direct evidence, it is admissible and may be used for findings of fact. See Section 120.57, Florida Statutes.

However, I have not admitted it in this case because it is a "mixed bag" of information and clearly prejudicial to

Petitioner, who has no hope of cross-examination of the deceased affiant, and because the other evidence presented is sufficient to decide the case.

2/ Although "African-American" has become the more acceptable term, Petitioner referred to himself as "Black," not "African- American." His Petition, all the pleadings, and all the evidence presented to the undersigned utilized the designation "Black." Therefore, that term has been used herein.

3/ It is noted that what purports to be the initial Charge of discrimination before the Commission was attached to other pleadings. That item does not allege any "pattern" discrimination, i.e., harassment. Only the box on "race" is checked. Unfortunately, a copy of the Charge was not properly identified by Petitioner and/or stipulated-to for purposes of this case, and was not admitted in evidence. Had any of those preliminaries been accomplished, a ruling could have been made to exclude any harassment allegations or evidence offered on that issue, because that issue appears to have been raised for the first time in the Petition for Relief, and then only obliquely. See Williams v. Shands at Alachua General Hospital and Santa Fe Health Care, DOAH Case No. 98-2539 (Recommended Order January 8, 1999; final Order July 16, 1999); Luke v. Pic 'N' Save Drug company, Inc., DOAH Case No. 93-4425 (Recommended Order August 25, 1994; Final Order December 25, 1994). Austin v. Florida Power Corporation, DOAH Case No. 90-5137 (Recommended Order June 20, 1991; Final Order October 24, 1991). See also Haynes v. State of Florida, 1998 W.L. 271462 (U.S.D.C. So. Dist. Fla. 1998); Abet v. Transamerica Mailings, Inc., 159 F.3rd 246,

254 (6th Cir. 1998). Auston v. Schubnell, 116 F.3d 251, 254 (7th Cir. 1997).

4/ Petitioner telephoned an Atlanta superior of Mr. Shepard to complain about Mr. Shepard's calling him "Bubba," but there is no evidence that Petitioner filed a discrimination complaint of any kind at that time. Petitioner also did not know if any superior ever spoke to Mr. Shepard concerning Petitioner.

5/ Petitioner did not prove that Mr. Shepard's superiors had anything to do with this never again addressing Petitioner as "Bubba," but if his theory were to prevail, then even

Mr. Shepard's one-time use of the term could not be held against the employer. Faragher v. City of Boca Raton, supra.

COPIES FURNISHED:

Azizi M. Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Lonnie McMillon Post Office Box 231

Gretna, Florida 32332

Daniel F. Piar, Esquire James H. Coil, III, Esquire Kilpatrick, Stockton, LLP 1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309-4530

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: 00-002315

Orders for Case No: 00-002315