STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDDIE L. SWINSON,

Petitioner,

vs.

CDR SYSTEMS CORPORATION,

Respondent.

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) Case No. 01-4315

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RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this case on January 29, 2002, in Palatka, Florida. The following appearances were entered:

For Petitioner: Eddie L. Swinson, pro se

1714 1/2 Westover Drive Palatka, Florida 32177

For Respondent: Debra L. Horton, Esquire

Amlong & Amlong, P.A.

500 Northeast Fourth Street Second Floor

Fort Lauderdale, Florida 33301-1154 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to discrimination in the work environment by CDR Systems Corporation (Respondent) due to Petitioner's race 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 December 28, 1995, alleging discrimination in regard to Petitioner on the basis of his race.

On or about September 14, 2001, the FCHR issued its Determination: No Cause.

On or about October 1, 2001, Petitioner filed a Petition for Relief with the FCHR. Subsequently, on or about October 31, 2001, the case was forwarded to the Division of Administrative Hearings (DOAH) for formal proceedings.

During the hearing, Petitioner testified on his own behalf and also presented one exhibit. Respondent presented the testimony of three witnesses and four exhibits. No transcript of the proceeding was provided.

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. Respondent produces packaging for electronics in Palatka, Florida, and another plant located in the state of Oklahoma. Respondent's president, Bud McGrane, had a good relationship with his employees and provided them with his home telephone number. In January 1995, McGrane made a decision,

   based on business necessity, to move Respondent's "big box" production line to the Oklahoma facility.

2. Eddie L. Swinson, a black male, began working for Respondent on August 6, 1990. By January of 1995, Swinson had become the supervisor of the "big box" production line. Approximately 12 employees in the Palatka plant, including Swinson, were affected by the move of the "big box" production line to Oklahoma.

3. Respondent attempted to find employment for the 12 affected employees in other departments within the Palatka plant. These approximately 12 employees included Swinson as well as other black, white and Hispanic employees.

4. Swinson’s supervisory position was eliminated when the "big box" production line moved to Oklahoma. Also, no other supervisory positions were available in the Palatka plant after moving the "big box" production line to Oklahoma. As a result, Swinson was offered an available production line position within another department, but he was unhappy in the position.

5. Richard Ramirez is the plant manager for Respondent in Palatka, Florida, and was the direct supervisor of Swinson during January and February of 1995. The two men had enjoyed a good working relationship prior to Respondent's decision to move "big box" production line to Oklahoma.

6. In the few months prior to his lay off in February 1995, Swinson was counseled several times by Ramirez because of his aggressive behavior toward other Respondent employees, specifically Mexican employees with whom Swinson had difficulty understanding and communicating. Swinson received an oral warning by Ramirez for insubordination on January 3, 1995, for his failure to curb his aggression toward these workers.

7. On January 27, 1995, Swinson was involved in an altercation with another Respondent employee, Jose Montanez, who is of Hispanic heritage. When Ramirez was informed of the altercation, he immediately took Swinson and Montanez aside to resolve the situation. Despite Ramirez’s efforts, Swinson remained highly agitated and accused Ramirez of being prejudiced. Montanez appeared shaken and frightened.

8. Fearing that the situation would escalate, Ramirez asked Swinson to leave the plant. Swinson left the plant still in an agitated state and, upon parting, threatened to get a gun and "take care of them." As a result of Swinson's threat, local police were called. The law enforcement officials told Respondent's manager that nothing could be done until Swinson took steps to carry out his threat.

9. Respondent's management took Swinson’s threat of violence seriously and decided to hasten Swinson’s lay off. Swinson was laid off by Respondent on February 7, 1995.

10. Swinson signed a clearance slip on February 7, 1995, acknowledging the reason for his leaving Respondent's employment was "Employee was laid off due to restructuring in production."

11. Swinson's application for unemployment benefits from the Florida Department of Labor and Employment Security was approved based on a finding that "the claimant was separated due to lack of work." Respondent never challenged these findings with regard to Petitioner.

12. Respondent did not rehire Swinson at a later date when the "big box" production line was resumed because of his previous threat to bring a gun to the workplace.

13. Swinson presented no evidence that he was replaced by a nonmember of the protected class or any credible evidence that he was subjected to racial discrimination while employed by

    Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

15. 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.

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

17. 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 pretextual. School Board of Leon

    County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

    
    

18. The Supreme Court of the United States has recognized that direct evidence of discrimination is extremely rare. As a consequence, the Supreme Court in McDonnell Douglas Corp. v.

    Green, 411 U.S. 792 (1973), articulated a method by which complainants, such as Petitioner in this case, might establish a rebuttable presumption of discrimination. That method requires that Petitioner show (a) that he is a member of a protected class; (b) that he has been subjected to adverse employment action; (c) that he was treated differently than employees not a member of the protected class; and (d) that there is evidence of a causal connection between Petitioner's protected status and his disparate treatment.

19. Petitioner has failed to offer credible evidence that his specific termination was based on his race. Further, there has been no proof that Petitioner was replaced with an employee who is not a member of the protected class or that Petitioner was treated differently from nonminority employees in similar situations.

20. It is concluded that Petitioner has not shown that Respondent's termination of his employment was a pretext to the exercise of racism and employment discrimination.

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 21st day of February, 2002, 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 21st day of February, 2002.

COPIES FURNISHED:

William R. Amlong, Esquire Amlong & Amlong, P.A.

500 Northeast Fourth Street Second Floor

Fort Lauderdale, Florida 33301-1154

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Eddie L. Swinson

1714 1/2 Westover Drive Palatka, Florida 32177

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: 01-004315

Orders for Case No: 01-004315