STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTIE JOHNSON,

Petitioner,

vs.

PCS PHOSPHATE,

Respondent.

)

)

)

)

) Case No. 01-2619

)

)

)

)

)

RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this case on August 17, 2001, in Jasper, Florida. The following appearances were entered:

For Petitioner: Artie C. Johnson, pro se

2672 Northwest 6th Drive Jennings, Florida 32053

For Respondent: Mary L. Wakeman, Esquire

McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A.

Post Office Drawer 229 Tallahassee, Florida 32302-0229

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR) on June 2, 1997, alleging sex discrimination.

On or about May 22, 2001, the FCHR issued its Determination: No Cause.

On or about June 27, 2001, Petitioner filed a Petition for Relief with the FCHR. Subsequently, on or about July 2, 2001, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

During the hearing, Petitioner testified on her own behalf and also presented the testimony of five witnesses. Petitioner presented no exhibits. Respondent presented the testimony of six witnesses and 16 exhibits. A transcript of the proceeding was filed on September 13, 2001.

The parties requested and were granted leave to file proposed recommended orders more than ten days from conclusion of the final hearing. Both Petitioner and Respondent filed Proposed Recommended Orders which have been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job

   duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars.

2. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function.

3. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things.

4. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many

   different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments.

5. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts.

   Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender.

6. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender.

7. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success.

8. Safety equipment was distributed to all employees.

   
   

   Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender.

9. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made.

10. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman.

11. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent.

12. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure.

13. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a

    12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader.

14. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On

    October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy.

15. Petitioner received her third reprimand on

    
    

    February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance.

16. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance.

17. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996,

    she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated.

18. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender.

19. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

21. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based upon race, color, religion, sex, national origin, age, handicap, or marital status.

22. The adverse effectuation of an employee’s compensation, conditions, and privileges of employment on the basis of sex is an unlawful employment practice.

23. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to

    articulate a nondiscriminatory reason for the adverse action. If Respondent is successful and provides such a reason, the burden shifts again to Petitioner to show that the proffered reason for adverse action is pre-textual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

24. Petitioner failed to establish a prima facie case of sexual harassment or discrimination by employees or supervisors of Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida.

DON W. 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 12th day of October, 2001.

COPIES FURNISHED:

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Artie Johnson

2672 Northwest 6th Drive Jennings, Florida 32053

Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope,

and Weaver, P.A. Post Office Drawer 229

Tallahassee, Florida 32302-0229

Cecil Howard, 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: 01-002619

Orders for Case No: 01-002619