STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN H. WAASER,

Petitioner,

vs.

STREIT'S MOTORSPORTS,

Respondent.

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) Case No. 04-2140

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RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled cause on August 18, 2004, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: John H. Waaser, pro se

Route 5, Box 32601

Lake Butler, Florida 32601

For Respondent: Thomas A. Daniel, Esquire

Attorney for Respondent 623 North Main Street

Gainesville, Florida 32601 STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner in discharging him contrary to Chapter 760, Florida Statutes?

PRELIMINARY STATEMENT

This case arose when the Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on December 19, 2003, alleging that that the Respondent had discharged him due to his religious beliefs. The FCHR investigated the complaint and issued a determination of no cause on May 5, 2004, giving notice to the Petitioner of his right to request a formal hearing. The Petitioner filed a Petition for Relief on June 16, 2004, with the FCHR, which forwarded the case to the Division of Administrative Hearings on that date. The file forwarded to the Division of Administrative Hearings reflects that the FCHR granted the Petitioner's request to extend the time for filing his Petition for Relief.

An Initial Order was issued on June 16, 2004, and after responses from the parties, the matter was set for hearing on August 18, 2004, by a Notice of Hearing that issued on June 25, 2004. The case was heard as noticed.

At the hearing, the Petitioner testified in his own behalf and called Michael Jones, Dianne Shelf, Francis Curtis, Nancy Becker, Ralph Bowden, and James Driver, who were questioned by both parties. The Petitioner introduced Petitioner's Exhibits 1, 2, and 3. The Respondent, in addition to asking direct questions of Petitioner's witnesses, presented the testimony

from Richard E. McGraw, Sr., and Marion Jones. The Respondent introduced Respondent's Exhibits 1, 2, 3, 4, 5, and 6.

After the hearing, a transcript was not ordered and the Respondent filed proposed findings in the form of an order which was read and considered.

FINDINGS OF FACT

1. The Petitioner is a white, middle-aged male. He was employed by the Respondent until approximately June 2003. His employment was "at will," which is to say that he was not employed pursuant to a contract.

2. The Respondent is a family-owned corporation engaged in the sales of motorcycles, motor scooters, personal watercraft, their parts and accessories. It sells Honda, Kawasaki, and Skeedoo products and is a family-oriented business. It has a standard of employee conduct, and provides its employees copies of its employee handbook.

3. The Petitioner was employed by the Respondent for a number of years prior to 1995, when the Petitioner left to start his own computer sales business. When that business failed, the Petitioner returned to work for the Respondent in approximately 1999, and worked for the Respondent as a parts and accessories salesperson until he was terminated near the first of June 2004.

4. The Petitioner alleges that he was discharged because of his religious beliefs, and testified in his own behalf. On or about March 27, 2003, the Petitioner was waiting on a customer who had purchased several items from him. After the sale was concluded, the Petitioner was engaged by a customer in a religious discussion in which the customer attempted to sway the Petitioner to the customer's fundamentalist, Christian beliefs. The Petitioner was unable to disengage himself from the customer, although from the Petitioner's comments he was engaged in a discussion of his alternative religious beliefs with the customer.

5. During this discussion, another employee approached the Petitioner and asked him in a whisper what was going on. The Petitioner testified that he told the employee, in a whisper, words to the effect that he could not get free of "this asshole who is trying to convert me!" The employee asked in a conversational voice, "Whose the asshole?" This brought forth a question from the customer, "Did you call me an asshole?" The Petitioner answered, "Yes!" or words to that effect.

6. There is no question or controversy that the Petitioner called or intimated that the customer was an asshole.

7. The Respondent's General Manager, Richard McGraw, became aware of the Petitioner's comment to the customer, and as a result the Petitioner was counseled on that date regarding the

   use of offensive language in the business and warned that any further use of profanity or obscenity on the premises would result in his termination. Religion was not part of their discussion at that time or at any other time.

8. The Petitioner had received a disciplinary report in October of the prior year for passing bad checks to the Respondent. There is no controversy that the Petitioner tendered the Respondent the checks or that he was disciplined.

9. On May 20, 2003, Marion Jones, the owner's wife and an officer in the company, was walking to her office and passed the Petitioner, who was on the telephone at the parts counter of the store. He was talking on the telephone with a parts supplier, and was commenting to the supplier's representative about Fred Marzloff, the Petitioner's direct supervisor. It is uncontroverted that the Petitioner said of Marzloff, "He is a fucking idiot." Ms. Jones brought this matter to the attention of McGraw.

10. On the same day, May 20, 2003, another incident occurred in which the Petitioner was abrupt and rude with a customer for whom parts had been ordered. Although there were extenuating circumstances concerning the ordering of the parts, the Petitioner's conduct was unprofessional, inappropriate, and did not seek to defuse a bad situation, but only made it worse.

11. On May 24, 2003, McGraw observed the Petitioner intervene in a sale by another parts clerk, and take credit for a sale that had been initiated by the other clerk. Sales are on commission, and this disadvantaged the other clerk. The Petitioner admitted taking credit for the sale, and excused his conduct at hearing indicating that he was ringing up a sale and put his initials on it by force of habit.

12. On May 28, 2004, McGraw terminated the Petitioner for the comments overheard by Ms. Jones, for the Petitioner's conduct with the customer over the parts and for the Petitioner's taking credit for the sale. The Petitioner refused to sign the disciplinary reports; however, none of the participants in the meeting at which the Petitioner was terminated or his other counseling sessions mentioned any discussion of religion other than the Petitioner's describing the customer's discussion of religion as being what caused him to call the customer an asshole. The Petitioner did not controvert the essential facts of the incidents.

13. The Petitioner asserts that his declaration that he was an atheist at the counseling session regarding calling the customer an asshole was the basis for his being disciplined.

14. McGraw testified that he was a non-believer, and that his sole reason for discharging the Petitioner was the Petitioner's repeated disregard of customer relations that

    included the use of obscene and profane language in the sales area, confrontational behavior with customers, and failing to maintain an appropriate professional relationship with fellow employees.

15. The Petitioner presented no credible evidence that the grounds given for his discharge were pretextual or that showed he had been treated differently from similarly situated employees.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Section 760.11, Florida Statutes.

17. Petitioner in this case has the burden of proof. See McDonnell-Douglas v. Green, 411 U.S. 248-792 (1973). Under the model of proof put forth in McDonnell-Douglas, when the charging party is able to make out a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment actions. See Department of

    Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). The employer has the burden to produce a legitimate, non- discriminatory reason, for its action. See Chandler, supra, and Alexander v. Fulton County Georgia, 207 F.3d 1303 (11th Cir.

    2000).

18. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of gender, age, religion, or national origin.

19. The only basis for Petitioner's claim is related to religion. The only part of his discipline that relates to religion was his being cautioned about maintaining customer relations for calling a customer, who was engaging him in a discussion of religion, an asshole. To the extent that religion is involved at all, it was with regard to a customer. The cautioning was not for discussing religion, or holding or not holding any religious belief. The business's legitimate concern was with Petitioner's treatment of its customers. Clearly, calling the customer, regardless of the provocation, an asshole was inappropriate.

20. The evidence presented indicated that the Petitioner lacked maturity and judgment in his conduct with co-workers and customers that interfered with his employers' business. There was no indication that his discharge was in any way motivated by the Petitioner's religious beliefs or lack thereof. The evidence indicated that the Respondent discharged the Petitioner for failing to maintain a professional demeanor in the salesroom and with customers. His discharge was for just cause and that cause was not shown to be pretextual.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

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.

COPIES FURNISHED:

John H. Waaser Route 5 Box 4975

Lake Butler, Florida 32054

Thomas A. Daniel, Esquire Thomas Daniel, P.A.

623 North Main Street Gainesville, Florida 32601

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: 04-002140

Orders for Case No: 04-002140