STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES W. COLBERT,
Petitioner,
vs.
SMURFIT STONE CONTAINER,
Respondent.
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) Case No. 04-0547
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was conducted in this case on June 9-10, 2004, in Pensacola, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William Scott Janes
Qualified Representative
308 Patom Avenue Atmore, Alabama 36502
For Respondent: Amie M. Remington, Esquire
Bozeman, Jenkins & Matthews, P.A.
114 East Gregory Street Pensacola, Florida 32501-3323
STATEMENT OF THE ISSUE
Whether Respondent Employer is guilty of an unlawful employment practice by discrimination due to Petitioner’s national origin.
PRELIMINARY STATEMENT
On August 25, 2003, Petitioner filed with the Florida Commission on Human Relations a Charge of Discrimination, alleging that Respondent had discriminated against him in violation of Title VII of the Civil Rights Act of 1964, the Florida Civil Rights Act [Chapter 760, Florida Statutes], the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act. On January 8, 2004, the Commission entered a “Determination: No Cause.” Petitioner timely filed a Petition for Relief. The cause was referred to the Division of Administrative Hearings on or about February 16, 2004.1/
At the commencement of the merits hearing, Petitioner requested to be represented by William Scott Janes. Mr. Janes was examined on the record and accepted as Petitioner’s Qualified Representative for this case.
The referral package transmitted by the Commission to the Division was admitted in evidence as Exhibit ALJ-A for the limited purpose of establishing the contents of the Charge, Determination, and Petition, and the dates of each document.2/
Petitioner presented the oral testimony of Ricky Mitchell, Carl Broadnax, Ronald Moran, Frank Talamo, Eric Adkins, Allen Givens, Ivory Kaye Stallworth, Aaron Hodges, Cynthia Perkins, Wesley M. Houston, Charlotte Cole, Ronald Williams, Clifford Stuckey, Eddie Jeffres, and Jackie Hodge. Petitioner elected
not to testify in his own behalf. Petitioner’s Exhibits P-41 (Corrective Behavior); P-42 (Adkins 4/30/02 CAF); and P-52 (2/1/88 Policy and Procedure) were admitted in evidence.
Petitioner's Exhibits P-2 and P-8 were not admitted.3/ Respondent presented the oral testimony of Robert
McCullough, Leo Willoughby, and Nancy Glass. Respondent’s Exhibits R-A through R-U were admitted in evidence.
On June 21, 2004, Petitioner submitted a Proposed Recommended Order in the form of a letter. On June 23, 2004, the undersigned entered an Order sua sponte, informing the parties that Petitioner’s Proposed Recommended Order was premature, in that it had been filed prior to the filing of the Transcript. The Order allowed Petitioner to amend his Proposed Recommended Order up to 10 days after the filing of the Transcript.
On June 28, 2004, the Transcript was filed.
Respondent timely filed its Proposed Recommended Order. Petitioner requested additional time to file his proposal.
Respondent filed no objection, and Petitioner’s technically late Proposed Recommended Order, filed July 13, 2004, was also deemed timely filed. However, its attachments are struck, as outside the record.4/ Only the respective Proposed Recommended Orders filed after the filing of the Transcript have been considered in preparation of this Recommended Order.5/ Petitioner's July 13,
2004 Proposed Recommended Order also contains a motion to reconsider admitting Exhibit P-1. The context of the Motion clearly indicates that Petitioner meant that he wanted Exhibit P-2, an affidavit of tribal identity, admitted. That motion is denied.
FINDINGS OF FACT
Respondent Employer is a paper packaging plant located in Cantonment, Florida. It fills orders from retailers as specified on purchase order forms (POFs). Respondent manufactures a variety of bags for containing retail goods. Petitioner worked for Respondent for more than eight years. During part of this time, he was a member of a union which had a collective bargaining contract with Respondent. At all times material, he did shift work involving heavy machinery "on the floor." Petitioner was terminated on June 13, 2003, after a series of disciplinary actions, the last of which arose out of events occurring on June 9, 2003.
Petitioner contends in his Proposed Recommended Order that Respondent did not follow the guarantees of his union’s collective bargaining contract, the established grievance procedures, and/or Respondent’s policy and procedure manual for tier-disciplining or for counseling him. However, Respondent’s failure to comply with these artificial standards, or Respondent's failure to only partially comply with them, is not
determinative of any issue under Chapter 760, Florida Statutes, unless Petitioner also can show that other employees, who were not of Petitioner’s protected class, were treated differently or more favorably than Petitioner in a similar situation.
It appears, however, that each time Petitioner requested union representation, he was provided with union representation. When he did not request union representation, he was not provided with union representation.
On his Charge of Discrimination, Petitioner checked only the box for “national origin.” He did not check the box for “race.” However, under the portion of the form reserved for “The Particulars Are:”, Petitioner filled in:
During my employment, I was constantly harassed by being called racially derogatory names. On June 13, 2003, I was terminated because of national origin (Native American). I was told that I was terminated for negligence.
On his Petition for Relief, Petitioner complained, among other things, of “ethnic slurs” such as:
Hay [sic.] Indian called Derogatory – names such as two Dog about my color and race.
About a year before his termination, Petitioner had a feud with a white male co-employee, Clifford Stuckey. This feud is described below more fully and in sequence with other events. Generally, however, Petitioner was a non-confrontational employee with a good work ethic.
With regard to his job performance, Petitioner was a model employee until he was promoted to machine operator more than two years before his termination. Petitioner had done well as an assistant machine operator, but after promotion, Petitioner was disciplined for a rash of quality control errors. The nature of his quality control errors was the same as that of many other similarly-situated employees, but his errors differed from other employees' errors in that he accumulated more quality control errors in a shorter period of time than any of his co- workers; he demonstrated too many such flaws within a single twelve-month period; and he cost the employer a considerable amount of money in wasted goods.
For the eight-plus years of his employment, nicknames were the common way Petitioner and his co-employees addressed one another, day-in and day-out on the floor of the plant.
Some supervisors picked up these nicknames due to their regular and pervasive use among subordinates.
Many employees had nicknames that they did not object- to. One Black male employee purchased a vanity license plate which read "African," so co-employees called him "African," without anyone considering the nickname to be a racial slur or otherwise derogatory. Carl Broadnax (Black male) was proud to be called "Black Stud." Ronald Moran (white male) was known as "Big Ron." A Puerto Rican employee named Tony Crevice (phonetic
spelling) was called "Julio." Eric Adkins (Black male) called another employee (race and gender unspecified) "Pooh Bear." Wesley N. Houston (white male) was called "Cowboy."
In the course of disciplinary actions against him during the last fifteen months of his employment, (see Findings of Fact 52-53, 65-70, 80 and 81), Petitioner told Nancy Glass, Respondent's white female Human Resources Director, that he was an "Indian." She understood that he perceived himself to be an "Indian."
During his eight-plus years in Respondent's employ, Petitioner was perceived by many of his co-employees as an “Indian” or “Native American.” Some of them called him by his first name, "James," but most of them also called him by the nicknames, “Indian,” “Two Dog,” “Two Dogs,” and/or “Two Dogs Fucking.” No clear evidence was presented as to how often any or all of these nicknames were used to address, or in reference to, Petitioner, but their usage must have been as common, continual, and pervasive as any of the other nicknames used day- in and day-out on the floor.
The foregoing nicknames for Petitioner were used by co- employees and accepted by Petitioner for more than eight years without rancor or dismay on either side. For more than eight years, the users did not perceive that the nicknames might be racially provocative or demeaning of Petitioner's race or
national origin, and they did not sense that he might be hurt by the nicknames, because he did not express hurt feelings or offense to anyone.
Only one witness thought Petitioner's nicknames were a bad thing. Ronald Williams (Black male and current union president) knew that "Two Dogs" was a common name given to Petitioner and that it was an abbreviation for "Two Dogs Fucking." He heard the abbreviation "Two Dogs" directed to Petitioner, but he never heard the full phrase even used around Petitioner. He considered both phrases to be racial in origin and racial in context, but even Williams could not say that Petitioner ever reacted oppositionally to any of the nicknames.
No other witness acknowledged hearing the nickname "Two Dogs Fucking." All of them thought the other nicknames which were applied to Petitioner were neither racial nor offensive. For instance, on a regular basis, Ricky Mitchell (white male) called Petitioner "Indian," without considering it a racial slur. Petitioner addressed Mitchell as "Paw Paw." Ronald Moran (white male) called Petitioner "Two Dogs," as a nickname, without assuming any racial connotation. Frank Talamo (white male, and sometimes-union shop steward) has used the term "Nigger" in his private life, but stated that he would not use it on the job, because it is, in his opinion, a racial slur.
Mr. Talamo heard Petitioner referred-to as "Indian" and "Two
Dogs" on a regular basis. Mr. Talamo testified that although he did not, himself, use the nicknames "Indian" and "Two Dogs" with Petitioner, he also did not consider them to be racial slurs, as he would have considered the word "Nigger." Eric Adkins (Black male) heard Petitioner called some "bad" or "harsh" names, but he did not specify what the names were; he also did not characterize the bad or harsh names as "racial." Carl Broadnax (Black male) testified that he called Petitioner "Two Dogs" because Petitioner's Cousin Joey, another Indian who worked in the plant, told Broadnax to call Petitioner by his Indian name, "Two Dogs" or to call Petitioner "James," Petitioner's given name. Because of Joey's instruction, Mr. Broadnax thought everybody called Petitioner "Two Dogs." Mr. Broadnax heard Petitioner called "Indian" by others. Ivory Stallworth (white female) heard Petitioner called "Two Dog." Aaron Hodges' paternal grandmother is "Indian" or "Native American." Mr.
Hodges does not make a distinction between the two designations, "Indian" and "Native American," and does not consider either designation to be derogatory language toward his grandmother or toward anyone else. He picked up the nickname, "Two Dogs" from its general usage on the plant floor to, and about, Petitioner. Cynthia Perkins (white female) stated that Petitioner was called "Two Dogs" in "general talking." Wesley N. Houston heard
Petitioner called "Indian" and "Two Dogs," but did not consider these nicknames to be racist remarks or derogatory language.
Clifford Stuckey (white male), with whom Petitioner feuded for a time, regularly called Petitioner "James" and "Two Dogs," because those names were what Petitioner was being generally called when Mr. Stuckey came to work for Respondent. He only knew Petitioner by his nicknames for two years, while they were "on the job friends" and "house visiting friends." Stuckey never heard anything else added to "Two Dogs." Apparently, Stuckey called Petitioner both "James" and "Two Dogs" before, during, and after the height of their feud, described more fully below.
Also, at least two supervisors (Allen Givens and Eddie Jeffres) used some of these nicknames in addressing Petitioner. Jeffres participated in an early disciplinary action against Petitioner, but neither Jeffres or Grimes participated in Petitioner's eventual termination.
Allen Givens was a machine operator, and thus a co- employee of Petitioner. Sometimes, he was also an "acting supervisor" over Petitioner. He heard others on the floor call Petitioner "Indian" and "Two Dogs." He personally called Petitioner "Indian" or "James." Givens testified that if Petitioner had ever intimated, while Givens was "acting
supervisor," that Petitioner had a problem with any nickname, he, Givens, would have put a stop to it.
At some point, Givens, while he was "acting supervisor" over Petitioner's shift, took Petitioner into the office and explained that Petitioner needed to do something about his body odor. The meeting between Givens and Petitioner was one-on-one, with no union representative or other employees present, and it was not written-up. Petitioner did not testify concerning this meeting. Givens was the only other person in the meeting, and he testified that he had initiated the conversation informally when he did, because he personally had noticed Petitioner's unpleasant body odor that day and because other employees had complained to him that day about Petitioner's body odor.
Givens, whose grandmother is an American Indian or Native American, did not consider his comments to Petitioner about body odor to be racial in nature, and race or national origin was never mentioned by either himself or Petitioner during their meeting. Givens further testified, without refutation, that such a meeting happened only the one time; that the conversation was in the nature of "counseling," as opposed to the formal disciplinary step of "coaching" Petitioner; that he had felt he was protecting Petitioner's feelings and privacy by not making a record of this counseling session; and that no
record was made because it was not part of the employer's three- tiered disciplinary formula.
Other witnesses confirmed that general day-to-day supervision, which did not lead to some form of oral or written warning or other standardized disciplinary action against an employee, was not normally written-up for the employee's personnel file. Not making a record of a minor counseling session was to the employee's advantage, because once something was recorded, it could be used against the employee as part of the employer's three-tier progressive discipline formula.
Although all witnesses concurred that working in the employer's un-air-conditioned plant, around heavy machinery, was sweaty work and that everyone smelled bad at some time or other, Frank Talamo, Eric Adkins, and Aaron Hodges also testified that at some point, Petitioner had a particularly offensive body odor. On one occasion, Talamo had asked a foreman to speak to Petitioner about it. No witness attributed Petitioner's body odor problem to his national origin or his race.
Although Petitioner may have been the only employee counseled about body odor by Givens, other supervisors had counseled other employees.
After being told about his body odor problem, Petitioner kept deodorant in his tool box and used it.
Respondent never disciplined Petitioner for body odor.
Eddie Jeffres, (white male) was Petitioner's team manager/supervisor. Many witnesses heard Jeffres address Petitioner as "Two Dogs." Mr. Jeffres addressed Petitioner as "Two Dogs," without any add-on, because that was the nickname Petitioner's co-workers used. He testified that he did not consider the nickname "professional," but he used it in a spirit of levity and camaraderie. He further testified that he would not have used it if, at any time, Petitioner had objected to it or had acted embarrassed by it. Because Petitioner always replied professionally and without rancor when the nickname was used, Mr. Jeffres did not equate its use with giving offense or hurting feelings.
Jackie Hodge was department manager. He considers himself to be "Cherokee-Irish." He never heard "Two Dogs" used with an add-on. He did not hear the abbreviated form used in Petitioner's presence, either, but he heard Petitioner referred- to as "Two Dogs." He, personally, did not refer to Petitioner as "Two Dogs," but he also did not think the term was racially demeaning. If he had thought that the term were racially demeaning, he would have sought out Petitioner's opinion on the matter. If Petitioner had complained to him, he would have prevented use of the nickname by other employees. However, it is his managerial style not to start an inquiry unless an employee complains, and Petitioner never came to him directly.
Indeed, none of Respondent's co-employees or supervisors thought Petitioner objected to any of the nicknames used to his face or used about him in general conversation, because Petitioner answered to the nicknames and did not complain or answer back with rancor when the nicknames were used. Additionally, Ms. Stallworth thought "everyone was okay with what was going on," because Petitioner answered to "Two Dog."
Robert McCollough was production manager. He considers himself to be "an American with an Indian great-grandmother who was full-blooded Cherokee." McCollough's wife of over 30 years is a Creek Indian, and his children went to college on an Indian grant. He never heard of "Two Dogs" and was not aware it was being used to refer to Petitioner, but he testified that unless Petitioner complained about the nicknames, the employer's management would not root out a problem where none was perceived.
Respondent Employer's predecessor in interest had an Anti-Sexual Harassment Policy in its employee's manual as of 1988. This policy was carried over by Respondent Employer. Petitioner received, and signed for, the Anti-Sexual Harassment Policy when he was first employed by Respondent Employer in approximately 1995. In 1999, when Respondent promulgated a similar Anti-Workplace Harassment Policy that specifically
prohibited discrimination on the basis of race or national origin, Petitioner received a copy of it.6/
The employer's Anti-Workplace Harassment Policy incorporates a procedure for confidentially addressing employee discrimination complaints, including harassment complaints. Briefly, that policy provides that an employee who feels harassed should directly tell his or her harasser what act or speech is offensive. If that confrontation does not end the problem, the offended employee is encouraged to go to the Human Resources Office, or to any supervisor on the chain of command, to lodge a confidential complaint. Even an "800" telephone number is provided so that a harassed employee may report the problem in complete confidentiality to the employer's legal office.
Since 1999, Petitioner has attended annual meetings discussing the Anti-Workplace Harassment Policy.7/
The Anti-Workplace Harassment Policy is posted in the plant where any employee can refer to it, and it is sent out to employees' homes in newsletters.
Respondent Employer also has in place, and has posted, an Equal Employment Opportunity Policy.
All witnesses agreed that while employed, Petitioner never raised his nicknames as a harassment or racial issue or as an issue of national origin to anybody.8/
Nancy Glass confirmed that, despite her "open door policy," Petitioner never filed a formal written protest with the employer's Human Resources Office because of any nickname.
Petitioner took the machine operator certification course, but he did not pass it the first time. The second time he took the course, he passed. He became an operator about 1999. Prior to that time, he was an assistant operator a/k/a "a feeder" or "a helper."
Machine operators receive an Operator Skills Training Handbook during their initial 40-hour machine operator certification course. The handbook describes the functions of the machines on which the operators work and the policies and procedures that operators and their assistants are required to follow, including proper preset procedures, proper set-up procedures, proper sleeve types, and how often quality checks should be done by both operators and assistant operators.
As an operator, Petitioner received quality assurance training twice-a-year.
If an employee's job performance requires correction, he first would be provided additional training. This training would be documented as a coaching session, rather than as discipline.
Other than that, the employer has a three-tiered corrective action (discipline) program in place, as set out in
the employees' handbook. All levels of discipline are documented in writing, even oral warnings. If supervisors do not perceive an error as correctable by retraining an employee, an "oral warning" is issued "in writing" for the employee's first error. The employee's next substandard performance results in a "written warning." The third step is to put the employee on paid Decision Making Leave (DML) for one day, to go home and think about how to correct his flaws and to write out a letter saying how he is going to accomplish that correction. If all three steps occur in a 12 month-period, a fourth error is supposed to result in termination. If the employee passes the
12 months' mark without a third error, the tiers recycle.
On average, the employer expects its operators and assistant operators to check their machines for accuracy every half hour. Usually, the operator and assistant operator stagger their respective checks in hourly sequences, so one man checks on the hour and one man checks on the half-hour. This means that the machine/product is checked every half hour by one or the other of them.
Some POFs require more frequent quality control checks.
At the beginning of each shift, each new operator coming on duty is responsible for comparing the POF to be run, or still running from the last shift, with the product currently coming off the end of his machine. If that operator does a
quality check at the very beginning of his shift, and then checks repeatedly at the required intervals throughout his shift, no more than thirty minutes (and thirty minutes' equivalent of non-conforming bags) can go by before an error is noticed.
The point of quality control checks is to ensure that the employer avoids running non-conforming bags.
Sometimes, non-conforming bags can be sold to a different buyer, often at a lesser profit. More often, they cannot be sold, cannot be recycled, and must be trashed.
There was no substantial difference in the discipline the employer applied to employees producing non-conforming bags which could be sold to a different buyer and the discipline it applied to employees who produced non-conforming bags, all of which had to be destroyed for a total loss.
The employer has been reasonably consistent in holding responsible everybody associated with a machine's quality control error who was on the shift when the quality control error was discovered, such as that shift's assistant operator, operator, and ending supervisor, for the same machine.
Depending upon when respective POFs were started and finished, the employer has also held responsible whichever operator preset the machine on the previous shift and that operator's assistant operator, both of whom should have
performed the quality control checks on the previous shift. Sometimes that shift's ending manager was disciplined, too. Usually, the operator coming on shift and his assistant operator also have both been disciplined if non-conforming bags are run. Sometimes that shift ending manager was also disciplined.
Basically, if the prior operator and his assistant run bad bags, they are disciplined for their own error, and if the next shift operator comes on shift and does not immediately check to prevent further errors, both operators and their assistants are written-up. Put another way, if there was a bad pre-set by an earlier shift, the operator, assistant, and manager on that shift are disciplined for the bad bags they have actually run, and the next shift operator, his assistant, and his manager are disciplined if bad bags result from the new operator's failure to check the pre-set as soon as the new operator comes on duty. If it is a totally new set-up by the new shift operator, then only that operator, his assistant, and his ending manager, are disciplined.
The degree of discipline for quality control flaws imposed upon any of the respective employees from either shift depended upon whether they already had gone through any of the three tiers of progressive discipline within the preceding 12 months.
Neither race, national origin, nor union membership affected who was disciplined or the degree of discipline any employee, including Petitioner, received for producing non- conforming bags.
On March 19, 2002, a random quality audit was performed by a manager. Petitioner received an oral warning which was written-up, because he had personal items (two packs of cigarettes) on his work bench/machine, and for failing to make on-going quality control checks of the weight of the bags his machine was running. No evidence of other employees also being written up for the offense of personal items in view was offered, but there also was no evidence others had personal items on their work benches in the same time frame without being written-up. Several witnesses testified that at one time having personal possessions in view had been permissible, but then a rule or instruction by the employer had prohibited this "in view" practice. Petitioner did not contest this discipline at the time.
On April 3, 2002, Petitioner set the product up to run with the wrong sleeve paper and then went off shift. His feeder had brought him the wrong sleeve paper. The feeder had not been disciplined previously, so she received a write-up of oral coaching. Petitioner did not run non-conforming bags himself, but he failed to follow the preset procedure, so he did not
catch the feeder's error. The wrong sleeve paper resulted in 12,500 defective bags being run on the following shift. These bags could not be used and had to be thrown away. Petitioner was orally counseled, by two supervisors, regarding his quality control flaw, and received a written warning for his failure to follow proper preset procedures. Eric Adkins, the operator on the next shift, and Adkins' helper, Larry Calhoun, both of whom actually ran the non-conforming bags using Petitioner's improper preset, and supervisor Eddie Jeffres, also were written-up for this error. The type of write-up each person got depended upon where his particular error ranked in the sequence of his respective number of prior errors, if any. Petitioner did not dispute this discipline at the time.
Clifford Stuckey had come to work for Respondent about three years after Petitioner. This was perhaps early 1998. Petitioner and Stuckey were "on-the-job friends" and "house- visiting friends" in their private lives for awhile. Unfortunately, about a year before Petitioner was terminated, perhaps June 2002, they had a falling-out.
Because Petitioner did not testify, the only first- hand explanation of what started their feud came from Stuckey. Apparently, Petitioner left his wife's car at Stuckey's home, with the intent of buying a second car for use as parts. The two men had an expectation that Mr. Stuckey, who was a good
shade tree mechanic, would use the parts of the second car to fix Petitioner's wife's car. However, Petitioner's wife's car was left at Stuckey's home, without the "parts" car being supplied by Petitioner, for seven months, a period of time that was longer than Stuckey thought appropriate. Stuckey gave Petitioner an ultimatum that if Petitioner's wife's car were not removed, Stuckey would leave it on the road. When Petitioner and his wife arrived at Stuckey's home to get the car, Stuckey was still on the job at the plant. Petitioner and his wife phoned Stuckey from a neighbor's home, but Stuckey refused to leave work and come home with the key to his house so that Petitioner and his wife could get their car key. Harsh words were exchanged over the telephone, and Stuckey addressed Petitioner's wife disrespectfully. It is unclear whether Stuckey also made an oral threat of unexplained consequences against Petitioner over the phone, but it is clear that Stuckey was in no position to physically assault Petitioner or his wife over the telephone line. Later, Petitioner and his wife found their car in a ditch by the side of the road leading to Stuckey's home.
Stuckey testified that for awhile after the car incident, Petitioner, while passing Stuckey's work station in Respondent's plant on his way to the restroom, would grab his own crotch or "flip me the finger." These are universal signs
of contempt, designed to provoke another into striking the first blow. After one such crude challenge by Petitioner, Stuckey told Petitioner "if he did it again, I would whip his tail." It is presumed that Stuckey's foregoing on-premises oral threat was actually delivered in somewhat cruder and more urgent language than he admitted-to on the witness stand.
Nancy Glass testified that shortly after the car incident, and still about a year before Petitioner's termination, Petitioner approached her and Robert McCullough in her office, and told them that he was "not saying he wouldn't or couldn't work with Stuckey," but that there had been an off- premises incident involving Petitioner's car being found on the road; that the dispute between himself and Stuckey had gotten "pretty nasty"; and that Stuckey had "smart-mouthed" him in the plant, as they had passed each other when Stuckey was going off shift and Petitioner was coming on shift. Petitioner acknowledged to them that no one had witnessed the "smart-mouth" incident. Petitioner did not tell Glass or McCullough that he had been threatened by Stuckey or that his feud with Stuckey involved any discrimination against him. He told them he did not want to have a sit-down discussion with Stuckey and that he did not want to make a big deal out of the incident, but he thought they should know about it. Petitioner said nothing about discrimination on the basis of his being Indian or Native
American. He said nothing about any nicknames applied to himself.
Since Petitioner did not wish to pursue the matter, Glass just told him to let them know if there were any further trouble between himself and Stuckey.
Robert McCullough recollected, not that Petitioner had mentioned Stuckey in a meeting in Glass's office, but that Petitioner told McCullough while they were both on the plant's floor, that he and Stuckey had "a cussing" at one another off the plant premises. McCullough also did not recall Petitioner ever saying any incident had occurred on the plant premises or that Petitioner wanted to stay away from Stuckey. Petitioner said nothing to McCullough about discrimination, race, or national origin before his termination a year later. (See Finding of Fact 81.)
For an indeterminate period of time, Petitioner and Stuckey avoided each other at the plant, and it was clear to some co-workers that there was "bad blood" between them. During this time, never proven rumors circulated on the floor that Petitioner and/or his wife had been threatened by Stuckey. A never proven rumor reached Stuckey that Petitioner and his wife had "telephoned" Robert McCullough about the car problem.
However, Nancy Glass confirmed that Petitioner never filed a formal protest concerning his problems, whatever they
might have been, with Stuckey, and he never said anything more about their feud to her for the year leading up to his June 2003 termination.
Some co-employees never heard about the feud until after Petitioner's termination, when a never proven rumor started that Stuckey had sabotaged Petitioner's machine after Petitioner went off shift, thereby subjecting Petitioner to the final discipline of termination (see Findings of Fact 83-84) There was another never-proven rumor that Stuckey had rifled Petitioner's tool box while Petitioner was on suspension.
Still other co-employees did not hear about the feud between Petitioner and Stuckey until a few days before the merits hearing on this case, when one party or the other contacted them about subpoenas.
Most of the co-employees who had heard of Petitioner's and Stuckey's feud before Petitioner's termination thought the feud had blown over by the time Petitioner was terminated in June 2003.
On December 3, 2002, Petitioner was given a "written warning" for failing to follow an order approval on a quality checklist which resulted in 1,500 defective bags being run. These bags had to be thrown away because they were created with a crease cut so that they could not be filled with the customer's product. The error should have been detected on the
set up or on a later quality check. Petitioner was counseled regarding this error, as was the manager who approved the bag.
Because Petitioner already had received an "oral warning" and a "written warning," his December 3, 2002, error should have resulted in Petitioner being placed on DML. However, Jackie Hodge wanted to work with Petitioner, rather than to have to retrain someone new. Hodge also felt that steps in the disciplinary tier system should not be duplicated. Therefore, he reduced Petitioner's December 3, 2002, write-up to a "coaching session" and required Petitioner to retrain on the order approval procedure for the type of bag he created and on its quality checklist procedures. Petitioner's manager was also counseled.
On January 13, 2003, Petitioner was placed on DML, with one day's pay, for failing to perform quality check procedures which resulted in approximately 6,000 bags, with cuts on the main score, which had to be scrapped. If Petitioner had made the required quality checks, the error would not have occurred. Petitioner's union representative attended the meeting in which Petitioner was placed on DML. Jackie Hodge also gave Petitioner a card for confidential Employee Assistance counseling, which is an employee benefit. Petitioner's manager was also counseled and written-up, consistent with his own respective number of substandard performances.
Petitioner returned to work with his DML letter dated January 24, 2003. The DML letter Petitioner composed and turned in did not set a specific date for formal review of his performance and improvement progress.9/ However, in the letter, Petitioner pledged to follow quality control procedures in the future. The letter was accepted by management, and Petitioner was put back to work. Because the management team had not been physically able to meet with Petitioner within one day to review his DML letter, and because DML is technically a suspension, Jackie Hodge arranged for Petitioner to be paid for a second day without his actually working. This was a deviation from the standard disciplinary policy, but it was a deviation to Petitioner's advantage.
On May 16, 2003, although Petitioner's quality checklist accompanying an order indicated that quality checks had been performed every half hour, the sleeve construction and placement on the bags produced were not correct. As a result, nearly 7,000 defective tubes had to be thrown away. Petitioner, his manager, and his helper were all disciplined for this quality control error. One of the concerns of management at this stage was that Petitioner and his helper may have falsified their checklists showing that the quality control checks had been made when the checks were not, in fact, made. If the checks had been made, in reality, and not just the paper work
filled-out, the error would have to have been "caught" in less than an hour, and far fewer non-conforming bags would have been created. If the checks had been made and apparent errors corrected at any stage, 7,000 non-conforming bags could not possibly have been created. Petitioner's union representative signed-off on his suspension.
Petitioner met with Jackie Hodge, Ron Williams, Nancy Glass, Robert McCullough, and Leo Willoughby on May 22, 2003, while he was on suspension, pending probable termination for too many progressive disciplines within a 12-month period. Petitioner agreed that if they brought him back to work, he would follow all plant procedures, including quality control checks. Management side-stepped a union grievance and brought him back to work, with the understanding that if he again failed to follow instructions, he would be terminated.
It was Jackie Hodge's job to schedule available workers' hours and shifts in order to keep Respondent's plant fully operational at all times. On June 9, 2003, he assigned Petitioner, as operator, and Stuckey, as assistant operator, to the same machine on the same shift.
Stuckey testified, without refutation, that it was "just luck" he and Petitioner were not scheduled to work together on the same shift or same machine while their feud had been in progress.
It was management's mind-set that in the absence of discrimination, "problems were not moved, but solved," and that any disputes arising off-premises were up to employees to work out on their own. The same was essentially true for personal, non-discrimination problems arising within the plant.
There is a discrepancy in the testimony as to when, precisely, Jackie Hodge found out that Petitioner and Stuckey had their feud. Nancy Glass testified that she "thought" she told Hodge about the off-premises car incident and on-premises "smart mouth" incidents a year before June 9, 2003. (See Findings of Fact 57-58). Hodge, himself, testified that he knew nothing about the off-premises car incident and on-premises "smart mouth" remark until Petitioner was "on suspension." Because Petitioner was on suspension of some kind on January 13, 2003, May 16, 2003, and after June 9, 2003 (See Findings of Facts 67-70 and 79-81) it is hard to say with any assurance whether or not Hodge knew, when he assigned them to the same machine for June 9, 2003, that Petitioner and Stuckey had feuded a year before. Yet, regardless of when Jackie Hodge knew Petitioner and Stuckey did not get along, there is absolutely no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises, were motivated, affected, or prolonged because of discrimination against Petitioner as an Indian or Native American.
Moreover, Stuckey testified that although he and Petitioner never sat down and formally discussed their problems or agreed to be friends again, he also testified, without refutation, that he thought that he and Petitioner had resumed their friendship by the time they were scheduled to work together on Petitioner's last night of employment, June 9, 2003.
Finally, after Jackie Hodge posted the machine and shift assignments for June 9, 2003, neither Stuckey nor Petitioner approached him to request that he reassign one or the other of them to a different shift or machine.
Petitioner and Stuckey worked the same machine on the same shift on June 9, 2003.
When Petitioner and Stuckey went off shift on June 9, 2003, their machine was producing bags without a tuck-in sleeve, contrary to the POF. Defective bags were created with the glue under the valve, in the wrong position on the bag. If Petitioner and Stuckey had performed the required quality control checks, the machine should have been producing the correct type of bag when they turned it over to the next shift. Because they had left the incorrect set up, and because the operator coming on shift after them did not immediately catch their error, the machine continued to create unusable, non- conforming bags well into the following shift.
Petitioner's June 9, 2003, quality checklist indicated that he had performed all the quality checks. However, the order ran at the rate of 2,000 bags per hour and the order called for quality checks to be performed every 15 minutes. Thus, during the six hours it took to run close to 12,000 bags, a total of 24 quality checks should have been performed by Petitioner, Stuckey, and the next operator and his assistant, each of which checks could have caught the error. Because the error was not caught during the quality check procedure, all 10,850 bags actually produced had to be scrapped.
Petitioner and Stuckey were both disciplined for the June 9, 2003, problem. At this point, Petitioner's accumulated disciplinary record clearly required that he be terminated. As before, he was suspended, pending a decision on termination. Stuckey's situation had not reached that stage, and he received a written warning.
After a review by McCullough and McCullough's superior, the decision was made to terminate Petitioner and he was notified by telephone. Petitioner filed a union grievance. During the review and grievance process, Petitioner admitted to McCullough that he and Stuckey had been signing off on the quality control checks for each other on June 9, 2003. Only after these reviews and grievance procedures were completed and
the grievance was denied, did Respondent consider Petitioner "terminated," as opposed to "suspended."
In all, the employer calculated that Petitioner was fully or partially responsible for 39,000 bad bags at approximately 33 cents per bag, or $12,870.00, worth of bad bags.
Stuckey testified without refutation that he had not altered the machine in question.
After some more operators (race and national origin unspecified) were disciplined for quality control errors on the same machine to which Petitioner and Stuckey had been assigned on June 9, 2003, it was discovered that a part on the machine was gradually slipping a little more each half hour so that the bags became increasingly non-conforming as time progressed. That discovery enabled Respondent to fix the machine, but the discovery did not alter anyone's prior discipline because timely quality control checks still would have prevented the production of so many non-conforming bags.
There was no evidence that any of Petitioner's disciplinary problems was due to his race or national origin.
There was no evidence that any of Petitioner's disciplinary problems or quality control issues arose from errors he made because of the nicknames he was called.
CONCLUSIONS OF LAW
Respondent is an "employer" and Petitioner is an "aggrieved person" as each of those terms is defined under Section 760.02, Florida Statutes.
Threshold questions are whether being a “Native American/Indian” falls within the protected category of “race” or the protected category of “national origin,” and if Petitioner guessed wrong when he only checked “national origin” on his Charge of Discrimination, must he be “thrown out of court,” as it were. It is noted that Section 760.02 (5), Florida Statutes, now defines "national origin" to include ancestry. The Charge of Discrimination and the Petition for Relief herein are consistent in stating the type of discrimination complained-of. The Petition does not attempt to add any new grounds. Both pleadings are clear as to what is being complained-of (see Findings of Fact 4 and 5), and no prejudice or surprise has been demonstrated by Respondent to have resulted from Petitioner's failure to specifically check the box for "race." For these reasons, and under the other limited circumstances of this case, it is concluded that Petitioner’s checking only one box: "national origin," should not be permitted to overwhelm the remainder of the contents of his Charge, which clearly address national origin and race. Therefore, it is concluded that the Division has jurisdiction to
address both discrimination categories, pursuant to Chapter 760, Florida Statutes.
There is no question that Petitioner and most of Respondent's employees perceived Petitioner to be an "Indian." This "perception" is sufficient to render him part of a protected class, whether or not he can objectively prove heritage or tribal membership. Therefore, that threshold issue also is resolved in his favor.
To show hostile work environment, a plaintiff must prove that: 1) he belongs to a protected group; 2) he has been subject to unwelcome harassment; 3) the harassment was based on a protected characteristic; and 4) the workplace is permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the terms or conditions of employment and to create an abusive working environment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993). The plaintiff also must show that the employer is either directly or vicariously liable for the abusive environment. Miller v. Kenworth of Dothan, Inc. supra.
Petitioner has established element one of a prima facie case, in that he has proven he belongs to a protected group.
Petitioner also proved that there was a pervasive work environment of nicknaming, but he was not singled out as the only person nicknamed. Nor were persons of his race or national origin singled out for nicknaming.
Petitioner established that the nicknames addressed to, and about, him were related to his race/national origin, thereby meeting element three of a prima facie case.
However, Petitioner established no intent by any employee or manager to insult, demean, or offend him. Calling someone an "Indian" is not, in and of itself, derogatory or harassing. Without something more, the term, "Indian" is nothing more than a designation of ethnicity.10/ Likewise, although Christopher Columbus made a geographical error that resulted in inaccurately naming the native peoples of the North American continent “Indians,” and although that term may no longer be politically correct, the word "Indian" is not yet commonly recognized as being derogatory or disrespectful, per se. Indeed, in his Proposed Recommended Order, Petitioner even refers to himself as an "American Indian."
Also, no other co-employee or manager who likewise was a proud descendant of Native Americans, was offended by the use of the nickname "Indian."
Therefore, the nickname "Indian" presents no harassment by any legitimate standard.
Calling Petitioner by the nicknames, “Two Dog,” “Two Dogs,” and “Two Dogs Fucking” is another matter. Although no witness would acknowledge that the last nickname arose from an infamous joke involving how Indians allegedly receive their given names, it is axiomatic that no one would be pleased to be called “Two Dogs Fucking.” Even though one co-employee of another race was led to believe he was calling Petitioner by a name ("Two-Dogs") embraced as acceptable by Petitioner's Native American cousin, it is equally obvious that the nicknames “Two Dog” and “Two Dogs” are merely abbreviations of the longer, cruder phrase. Regardless of how Respondent’s personnel viewed these nicknames for Petitioner, Petitioner would be entirely justified if he had taken offense at each of them. Therefore, on their face, these nicknames may be presumed to be offensive. The problem, of course, is that Petitioner never gave any clue that he regarded any of the nicknames as related to his race or national origin or that they were "unwelcome."
To determine whether a plaintiff subjectively felt harassed, a court may look to see if the employee quit,
regularly avoided the workplace, reacted angrily to the alleged comments/acts, or exhibited some physical or psychological reaction to the [allegedly hostile] environment. Daniels v.
Essex Group, Inc., 937 F.2d 1264, 1272-73 (7th Cir. 1991).
Petitioner provided no such clues to Respondent.
For more than eight years, Petitioner answered professionally and courteously to each of the nicknames addressed to him. He did not raise the issue of discrimination until after he was faced with termination for progressive disciplinary actions. Neither of the supervisors who addressed him with a nickname (Givens and Jeffres) had any part in his ultimate termination.
In Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991), the court quoted at length from Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), and approved the requirement that a Petitioner cannot sit on his rights, without complaint, and then prevail:
In further qualifying the justiciability of sexual harassment claims, the Supreme Court stated: "The gravamen of any sexual harassment claims is that the alleged sexual harassment claim is that the alleged sexual advances were 'unwelcome' . . . [T]he question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact . . . " Id. At 68, 106 S.Ct. at 2406.
"The correct inquiry is whether [the victim] by her conduct indicated that the alleged
sexual advances were unwelcome, not whether her actual participation . . . was voluntary." Id.
In this case, the nicknaming of most employees by each other was a pervasive part of the usual "horseplay" common in such work environments and everyone was subjected to similar razing or rough teasing. An employer is not an arbiter of polite behavior and is only required to address unwelcome behavior issues unequivocally brought to its attention as unwelcome or discriminatory. This Respondent Employer's middle- management knew of the nicknames and should have known that some nicknames were objectively offensive, but Petitioner never complained to management at any level that he considered the nicknames applied to him either unwelcome or discriminatory for any reason or that the nicknames amounted to harassment or a hostile work environment. If the victim of an alleged hostile work environment does not subjectively perceive the environment to be abusive, the conduct has not actually altered the condition of the victim's employment and there is no actionable discrimination. See Mangrum v. Republic Industries, Inc. 260 F. Supp. 2d 1229 (U.S. Dist. Ct. N.D. Ga. 2003).
This employer's anti-harassment and anti- discrimination policies were clearly posted and actively disseminated to its employees. (See Findings of Fact 34-35.) These precautions against discrimination and harassment provide
an affirmative defense under the facts of this case. See Mangrum v. Reynolds Industries, Inc. supra; Faragher v. City of
Boca Raton, 118 S. Ct. 2275 (1998). Herein, there is no evidence that Petitioner told his alleged "harassing" co- employees or supervisors that he was offended by the nicknames. Petitioner did not confront any harasser; did not make use of the Human Resources Department's "open door policy"; did not go to a sympathetic supervisor; and did not call the toll-free, confidential, off-premises legal "help" line. He also never filed a formal complaint or grievance on the basis of the nicknames. His failure to timely complain is fatal to his claims of harassment and hostile work environment.
Therefore, Petitioner herein has failed to prove elements two and four of a prima facie case of harassment or hostile work environment.
To establish that his termination was the result of discrimination on the basis of race or national origin, Petitioner must show by direct, circumstantial, or statistical evidence that his termination and the discrimination were connected. McDonnell Douglas Corp. v. Green, 41 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See also Longariello v. School Board of Monroe County, Florida, 987 F. Supp. 1440 (S.D. Fla. 1997), and Walker v. Nationsbank of Florida, N.A., 53 F.3d 1548 (11th Cir. 1995).
Petitioner offered no direct or statistical evidence of unequal treatment in the disciplinary and termination process. All of his circumstantial evidence shows an even- handed application of the employer's three-tier discipline policy, with at least two more beneficial treatments of Petitioner than strict enforcement of that policy would have warranted: December 3, 2002, when his probable DML was reduced to a coaching session, and May 16, 2003, when his probable termination was put on hold and he was permitted to resume work, despite having exhausted his permitted number of progressive disciplines in a 12-month period. (See Findings of Fact 66 and 69-70.) Petitioner was permitted 15 months and more than three progressive disciplines to comply with standards.
Petitioner has shown no situation in which a non- Indian/Native American received better -- or even different -- treatment on the disciplinary tiers than he received. Therefore, he has not made a prima facie showing of unequal treatment on the basis of race or national origin.
It is apparently one of Petitioner's theories of the case that on June 9, 2003, management connived to put Stuckey on his machine in order to put Petitioner in harm's way or to sabotage Petitioner's machine so that he made one mistake too many and could be terminated for three progressive disciplines within 12 months. Assuming, arguendo, but not ruling, that
Jackie Hodge knew of the old ill will between Stuckey and Petitioner at the time he assigned them to work together, that ill will was not what caused Petitioner's ultimate and final quality control error. Petitioner did not testify, and the Stuckey's unrefuted testimony shows that there was no ill will between Petitioner and Stuckey on June 9, 2003, and that Stuckey did not sabotage the machine. The evidence further shows that the machine had a mechanical problem that persisted after both Petitioner and Stuckey were no longer associated with the machine; and that the quality control errors attributed to Petitioner and Stuckey were the result of their mutual failure to check the machine in the proper time increments. The same is true of the persons who were disciplined on subsequent shifts.
No one was disciplined because the machine was malfunctioning. Each employee was disciplined, within his own respective three- tier status, for not timely discovering that the malfunctioning machine was producing bad bags.
There also is no evidence that Petitioner's quality control problems bear any relationship either to the nicknames applied to him or to his dispute with Stuckey. The nicknames began approximately eight years before Petitioner's termination and six years before Petitioner had quality control problems, so no nexus between the names and Petitioner's substandard performance was established. His March 19, 2002, and April 3,
2002, quality control problems preceded the June 2002 car incident with Stuckey. Any threats predated Petitioner's termination by a year, and no nexus between Stuckey and Petitioner's substandard performance was established. Finally, there is no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises were motivated, affected, or prolonged because of discrimination against Petitioner as a member of a protected class.
Finally, assuming arguendo, but not ruling, that a nexus to discrimination sufficient to make a prima facie case has been presented, Petitioner still cannot prevail on his charge of unlawful termination. Once a presumption of unlawful discrimination is created in the prima facie case, the burden then shifts to the employer to show a legitimate nondiscriminatory reason. McDonnell Douglas Corp. v. Green, supra. If the employer carries this burden, the employee must prove by a preponderance of the evidence that the reason offered by the employer is not the true reason, but only a pretext for discrimination. However, at all times, the ultimate burden of persuasion that the employer intentionally discriminated against the employee remains with the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 207 (1981). Petitioner did not refute his quality control failings as demonstrated by the employer; did not
demonstrate that any other employee outside his protected group was given different treatment; and did not show that the reasons for his termination (three or more substandard performances within 12 months) was pretextual. See on point of a failure to meet the employer's legitimate performance expectations, Campbell v. Dominick's Finer Foods, Inc., 85 F. Supp. 2d 866 (U.S. N.D. Ill. 2000).
Petitioner's Charge and Petitioner should be dismissed.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida.
S
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 17th day of September, 2004.
ENDNOTES
1/ The Division's jurisdiction is limited to Chapter 760, Florida Statutes. See Conclusions of Law.
2/ Although Petitioner has devoted much of his Proposed Recommended Order to alleged flaws in FCHR's investigation and to explaining FCHR's staff's instructions to him, this is a de novo proceeding, and the Division is not bound by FCHR's Determination: No Cause. Also, items not in evidence in this proceeding cannot be considered.
3/ Petitioner's Proposed Recommended Order reveals he is confused about the numbering of exhibits. Petitioner's Exhibits P-41,
P-42, and P-52 were admitted in evidence. Petitioner's Exhibits
2 and 8 were not admitted in evidence. P-8 purports to be a "joke" printed off the internet. No witness acknowledged ever seeing the printed material or hearing the joke, and the exhibit was not admitted in evidence. See TR 232-233. See also, the Conclusions of Law. P-2 purports to be a certificate/affidavit acknowledging Petitioner as a member of the Poarch Band of Creek Indians. It was not self-authenticating and no witness laid a predicate for its admission. Despite an explanation by the undersigned that probably Petitioner could lay any necessary evidentiary predicate, Petitioner never took the stand. See, TR-332-334 and 400-404. All marked exhibits, whether or not they were admitted in evidence, will be returned to the FCHR with this Recommended Order.
4/ Attached to Petitioner's July 13, 2004, Proposed Recommended Order were materials which were neither offered nor admitted at the hearing, and which are, at best, contradictory as to Petitioner's race or national origin. They are what purports to be Petitioner's birth certificate which does not show his father to be an Indian; what purports to be Petitioner's father's birth certificate which shows Petitioner's father's father and mother (Petitioner's paternal grandparents) were "Indians"; and what purports to be Petitioner's father's death certificate showing Petitioner's father was an "Indian." All these items are struck, as outside the record.
5/ Petitioner's first Proposed Recommended Order, filed June 21, 2004, having been superceded by his July 13, 2004, Proposed Recommended Order, has not been considered.
6/ Despite Petitioner's assertion in his Proposed Recommended Order that some of the signatures in the employers' files acknowledging receipt of documents and attendance at meetings and training sessions are not his, no one testified to that effect.
7/ See n6.
8/ There appears to be some controversy about whether Petitioner first alerted Respondent's management to his complaints re national origin/race by his FCHR complaint dated August 25, 2003, or at his Unemployment Compensation (UC) hearing about September 2, 2003. A Charge of Discrimination filed with FCHR probably would not have been forwarded by FCHR and received by Respondent before the September 2, 2003 hearing. However, since both the filing date with FCHR and the date of the UC hearing were after Petitioner's termination, these dates are immaterial as to whether or not Petitioner timely notified Respondent that the nicknames for him were unwelcome.
9/ Petitioner asserts in his Proposed Recommended Order that such a specific review date is contemplated by employee publications, the collective bargaining contract, and/or the employer's three tier progressive discipline policy, and that the failure to have set such a date within the DML letter constitutes disparate treatment with other employees and/or somehow absolves him of being disciplined by termination. He further asserts that the DML letter does not constitute the "social contract" letter provided for in one or more of the foregoing publications, and that it therefore constitutes disparate treatment and/or absolves him from termination.
However, the DML letter is the equivalent of a "social contract" per testimony and per any logical reasoning. The DML letter is provided for in the three tier progressive disciplinary policy. Regardless of Respondent Employer's aspirational intent and minimal failures within the foregoing documents, and possible minimal deviations therefrom, there is no evidence that any employee of an unprotected class was actually treated differently than Petitioner under the same circumstances.
10/ Objectively, nicknames such as "African" or "Indian" are no more than neutral designations of origin (a continent) or of heritage, as opposed to a racial or ethnic slur or insult.
Compare, “Negro,” which is widely understood to be an antiquated, but still non-pejorative, word that describes a racial category, while “Nigger” is widely understood to be a provocative term of racial disrespect and antagonism between Caucasians and Negroes because it conjures up historical times, first of slavery and later of racial discrimination against People of Color.
COPIES FURNISHED:
William Scott Janes Qualified Representative
308 Patom Avenue Atmore, Alabama 36502
Amie M. Remington, Esquire Bozeman, Jenkins & Matthews, P.A.
114 East Gregory Street Pensacola, Florida 32501-3323
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 23, 2004 | Agency Final Order | |
| Sep. 17, 2004 | Recommended Order | Petitioner who checked only "national origin" was also permitted to address "race." Extensive remarks and nicknames against a protected class are not "unwelcome" if not complained of, and a personal feud without a discriminatory component is immaterial. |
