STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LONNIE JENNINGS,

Petitioner,

vs.

SANDCO, INC.,

Respondent.

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) Case No. 02-3998

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RECOMMENDED ORDER

Notice was provided and on January 6, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: Lonnie Jennings, pro se

Post Office Box 782 Greenville, Florida 32331

For Respondent: Vehad Ghagvini, President

Vicki Goodman, Personnel Representative Sandco, Inc.

2811 Industrial Plaza Drive Tallahassee, Florida 32310

STATEMENT OF THE ISSUE

Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies

are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.

PRELIMINARY STATEMENT

On February 9, 2001, Petitioner filed an amended charge of discrimination against Petitioner with the Florida Commission on Human Relations (FCHR). The alleged cause of discrimination was based upon race. In particular, it was alleged that:

1. Personal harm was suffered by Petitioner on December 4, 2000, from being terminated from his position as a serviceman.

   
   

2. The reasons for personal harm were stated as Petitioner being told that he was no longer needed.

   
   

3. The statement concerning discrimination was that Petitioner believed that he was discriminated against because of his race, Black, in violation of Chapter 760 of the Florida Civil Rights Act as amended in Title VII of the Federal Civil Rights Act for reason that the Superintendent, Larry Smith, showed favoritism toward white employees. For example, Mr. Smith would make sure that Petitioner and other Blacks were working while white employees were not performing nor required to perform at the same level. And two, Petitioner was asked on two occasions not to have conversations with a white female on the job. One other Black male was discharged for talking to a white female on the job, according to the claim.

The allegations were investigated by FCHR. On September 23, 2002, FCHR filed its determination of no cause and gave separate notice of that determination.

On October 9, 2002, Petitioner filed his Petition for Relief against Respondent with FCHR. In the petition Petitioner alleged that Respondent showed favoritism toward white employees.

Petitioner alleged that he was told not to talk to white female employees. Petitioner alleged that black employees were worked harder than white ones. As to facts, Petitioner alleged that Larry Smith treated Petitioner and other Blacks on the job unjustly. Petitioner alleged that Mr. Smith would allow Whites to stand around and talk but did not allow Blacks to do so.

Petitioner alleged that Mr. Smith especially got angry when Blacks on the job spoke to white women on the job. Petitioner alleged discrimination attributable both to Respondent and Larry Smith and Petitioner stated his desire for compensation in relation to the alleged discrimination pertaining to financial stress and strain due to being fired around Christmas.

On October 15, 2002, the Division of Administrative Hearings received the transmittal of the petition from FCHR, and the case was opened under the aforementioned number. The case was scheduled to be heard before Stephen F. Dean, Administrative Law Judge. The case was reassigned and the hearing conducted by the undersigned.

Petitioner testified in his own behalf. Petitioner's Exhibits numbered 1 and 2 were denied admission. Those denied exhibits are transmitted with the record. Petitioner's Exhibits numbered 3 through 6 were admitted.

Respondent presented the testimony of Vicki Goodman and Vehad Ghagvini. Respondent's Exhibits numbered 1 through 5 were admitted.

On January 23, 2003, the hearing transcript was filed with the Division of Administrative Hearings. No proposed recommended orders were provided.

FINDINGS OF FACT

1. Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act.

2. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices.

3. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees.

4. At times relevant Larry Smith was a supervisor for Respondent.

5. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000.

6. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around."

7. Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted.

8. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice.

9. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job.

10. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached

    Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked.

11. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African-

    American or Black and that the other persons were Caucasian or White.

12. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described.

13. Mr. Smith also told the Don Olsen employee that he did

    
    

    not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck.

14. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning

    conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination.

15. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that.

16. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees.

17. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination.

18. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until

    his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

20. This action is maintained pursuant to the Florida Civil Rights Act, Sections 760.01 through 760.11, Florida Statutes. The Florida law is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. s.2000e et seq. School Bd. of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981). As a consequence federal case law dealing with Title VII is deemed applicable to the cases under the Florida Civil Rights Act.

21. By virtue of the Petition for Relief, Petitioner claims disparate treatment and hostile work environment leading to his termination based upon race, this constituting an unlawful employment practice by Respondent. Section 760.10(1), Florida Statutes.

22. Petitioner is a person as defined in Section 760.02(6), Florida Statutes, who is an aggrieved person having filed a complaint with FCHR. Section 760.02(10), Florida Statutes.

23. Respondent is an employer as defined in Section 760.02(7), Florida Statutes, subject to the Florida Civil Rights Act concerning its conditions of employment for its employees.

24. To prevail Petitioner has the initial burden of making a prima facie case of racial discrimination as alleged. In the event that the Respondent articulates what it considers to be a legitimate non-discriminatory reason for the termination of Petitioner's employment, then Petitioner must demonstrate that the proffered reason was a mere pretext for Respondent's discriminatory action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981)

25. No evidence was presented which demonstrates that Petitioner based upon his race as a member of a protected class, African-American, was treated differently than Caucasian employees, in that African-American employees were made to work harder than Caucasian employees or that Caucasian employees were allowed to stand around and talk while African-American employees were not allowed to stand around and talk.

26. Petitioner has shown that as a member of a protected group according to his race, African-American, he was subject to

    unwelcome conduct by Larry Smith on the basis of his race in prohibiting Petitioner from talking to the Caucasian females, the only females on the job site which affected the conditions of the employment. It was not shown that Respondent in the person of its management was made aware of Mr. Smith's actions such that imposition of liability on Respondent would be appropriate.

    Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)

    
    

27. Moreover, it would not be appropriate to impose liability on the Respondent for the acts of its supervisor because the reason offered for termination, non-attendance at the job on scheduled dates of work, supports the finding that the basis for termination was not related to unlawful discrimination.

Petitioner has not met his ultimate burden of persuasion that the termination was for reason of discrimination by showing that the Respondent's explanation of the grounds of termination were a mere pretext lacking legitimacy.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects.

DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 14th day of February, 2003.

COPIES FURNISHED:

Lonnie Jennings Post Office Box 782

Greenville, Florida 32331

Vehad Ghagvini, President

Vicki Goodman, Personnel Representative Sandco, Inc.

2811 Industrial Plaza Drive Tallahassee, Florida 32310

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-003998

Orders for Case No: 02-003998