vs.
Respondent.
) Case No. 10-0518
Pursuant to notice, a final hearing was held in this case before the Division of Administrative Hearings by Administrative Law Judge, Diane Cleavinger, on April 30, 2010, and October 29, 2010, in Pensacola, Florida.
R. Clinton Saxton, Esquire Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125
The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
On June 8, 2009, Petitioner, Floyd Middleton, filed an Employment Complaint of Discrimination against Respondent, Federal Express, with the Florida Commission on Human Relations (FCHR) alleging discrimination based on race and disability.
FCHR investigated the Complaint. On December 4, 2009, FCHR issued a determination of no cause, finding that “no reasonable cause exists to believe that an unlawful employment practice occurred.” FCHR advised Petitioner of his right to file a Petition for Relief and request a formal Administrative Hearing. On February 3, 2010, Petitioner filed a Petition for Relief and the matter was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner did not testify on his own behalf but presented the testimony of seven witnesses and offered two exhibits into evidence. Respondent presented the testimony of seven witnesses and offered 28 exhibits into evidence. After the hearing, Petitioner filed a Proposed Recommended Order on December 14, 2010. Likewise, Respondent filed a Proposed Recommended Order on the same date.
Respondent is an express package delivery and courier service. It operates both nationally and internationally. Important to its service is the ability of the company and its
customers to accurately track packages throughout Respondent's delivery system and to maintain timely delivery of those packages.
Petitioner is an African-American male. As an African- American, Petitioner is a protected person under chapter 760, Florida Statutes. Petitioner also served in the military and testified that he has been diagnosed with post-traumatic stress disorder (PTSD). However, while Petitioner was employed by Respondent, his supervisors had no knowledge of Petitioner's PTSD diagnosis or alleged disability. Similarly, they did not consider him to be disabled. Other than his testimony of having a diagnosis of PTSD, Petitioner offered no evidence of his condition and no evidence that Petitioner‟s PTSD is a disability or handicap as defined under the ADA or chapter 760. Given this lack of evidence, Petitioner failed to demonstrate that he is a protected person for purposes of handicap and the allegations of the Petition for Relief related thereto should be dismissed.
In 1996, Petitioner was employed by Respondent as a courier in Respondent‟s Pensacola station. In 2008 and 2009, Petitioner was supervised by Pat Gaal, an Operations Manager at the Pensacola station. Mr. Gaal was supervised by Senior Manager Doug Nash who was stationed in Mobile, Alabama.
Mr. Nash, in turn, was supervised by Randy King, Managing
Director of Respondent‟s River District. Mr. King's office was located in New Orleans, Louisiana.
As a courier, returning on time to the station is important so that the trucks, which move packages on the next leg of their journey, can leave the station on time. Any delays in loading these trucks and leaving on time can have a domino effect down Respondent's delivery system. For that reason, the courier is required to notify dispatch or call the station regarding an anticipated late return.
Additionally, a very important part of Petitioner‟s job was to “scan[] packages according to prescribed procedures. . .
.” “Scanning packages” refers to the practice of couriers scanning bar codes on packages assigned by Respondent‟s system with a device called a “Power Pad.” The bar code allows Respondent to collect and process data regarding the location and status of those packages for use by Respondent and its customers. This tracking information and its accuracy is a very important component of Respondent's service to its customers and can become vital if mailing or delivery of a package is at issue when legal rights are in dispute.
Because of this importance, Respondent has established a strict policy with severe penalties for employees who falsify data they put into the company's package tracking and processing system. Such falsification includes picking up packages and
scanning them at a later time so that the pick-up time is inaccurate. Policy 2-5 of Respondent‟s Acceptable Conduct Policy states that “an employee normally will be dismissed upon completion of an investigation confirming violations related to
. . . [d]eliberate falsification of Company documents including but not limited to . . . delivery records. . . .” Additionally, the Employee Handbook lists “[d]eliberate falsification of company documents including but not limited to . . . delivery records . . .” as a discharge offense.
As part of his employment with Respondent, Petitioner received an employee handbook. Petitioner also was trained by Respondent with regard to the Respondent‟s falsification policy and with regard to the fact that falsification was a terminable offense. As recently as February 8, 2008, Petitioner signed a memorandum from Respondent‟s Vice President, Ted Merida, explaining that falsification would result in termination. The memo stated, in part, that the “consequence of falsifying a document is termination, your management team has NO discretion or ability to deviate from the action required by policy, regardless of your tenure, . . . or whether your intentions were to serve the customer.” Additionally, on November 3, 2008, Petitioner signed a memorandum from Respondent‟s vice president, Dave Leech, which reemphasized the Respondent's policy that falsification violations would result in termination.
Couriers are generally assigned routes. Some routes are delivery or pick up routes only. Some routes combine these functions. On combined routes, the same driver delivers and picks up packages at the same location. In combined routing, deliveries and pickups are scheduled separately with deliveries generally occurring in the morning and pickups in the afternoon. Occasionally, a package might be available for pick up early when the courier is at a location making a delivery. Likewise, a package that was not scheduled for pick up might be available for pick up when the courier is at a location making a delivery. When packages are available early, the courier has the option to pick up the package when the courier is at the package location rather than returning later to the same location to pick up the package. However, these early pickups are required to be scanned when they are picked up so that the information on Respondent's tracking system is accurate.
In the months preceding January 2009, Petitioner was assigned the downtown Pensacola route, denoted as the “528” Route. He typically worked four ten-hour shifts per week. On the days when Petitioner was not working, “swing drivers” would cover the 528 route.
The 528 route was a “higher density” route compared to other routes because it was in a downtown area where deliveries and pick-ups at various locations are very close together.
Because of the combined route and density, the 528 route often had packages that could be picked up earlier than their scheduled pick up time. Additionally, a package that was not scheduled to be picked up might be available for the driver to take when they were delivering packages to a given location.
Petitioner was trained on the 528 route by Derrick McCrary, an African-American courier. When Mr. McCrary trained Petitioner, he instructed him that packages were required to be scanned immediately upon pick-up or within a few minutes of package pickup. Indeed, during this time, neither individual employed a practice of picking up packages in the morning and scanning them at a significantly later time.
Once Petitioner became the regular driver on the 528 route, performance goals were established according to Petitioner‟s performance on that route. Courier performance goals are tracked and reported package by package and stop by stop on FAMIS 129 reports. These reports include individual courier summary reports and "Planet Station" reports that chronologically track delivery and pick up information for a specific route.
In December 2008, Petitioner returned late to the station on multiple occasions. The courier who had Petitioner‟s route prior to Petitioner and swing couriers who covered
Petitioner‟s route on Petitioner‟s days off did not have the same problem returning late to the station.
Additionally, for the month of December 2008, Petitioner had the lowest on-road productivity numbers of any courier in the Pensacola station at 88.21 percent. Swing couriers, including Mr. McCrary, who covered Petitioner‟s route on Petitioner‟s days off did not have the same low productivity numbers as Petitioner.
Petitioner called Synethia Bell and Adrian Simmons as witnesses. Both Ms. Bell and Mr. Simmons are African-American individuals who currently work as couriers in Respondent‟s Pensacola station. Both Ms. Bell and Mr. Simmons testified that they are not aware of management at Respondent‟s Pensacola station showing favoritism based on race, that they have not experienced any racially-discriminatory treatment by management, and that they did not witness Petitioner receiving any racially- discriminatory treatment by management. Petitioner's other witnesses were long-time past employees whose testimony was not relevant as to the facts or the time period of this case.
Petitioner received a non-disciplinary online counseling from Pat Gaal stating that Petitioner‟s on-road performance was “unacceptable” and “the lowest in the station.” Mr. Gaal also expressed concern regarding Petitioner‟s repeated late returns to the station without notifying the proper person,
as he was required to do. There was no evidence that Respondent's online counseling was not based in fact or was based on Petitioner's race.
In January 2009, Pat Gaal was on vacation. Operation Managers Kurt Martin and Eric Perdue noticed during their routine review of the daily productivity reports that Petitioner had abnormally high and unachievable productivity numbers during the afternoon portion of his route. Additionally, they noted that pick-ups at different addresses were being shown as being only a minute apart. Such rapidity in pickups was also an impossible achievement given the locations for those pickups.
When Pat Gaal returned from vacation, Mr. Martin and Mr. Perdue brought these daily productivity reports to
Mr. Gaal's attention. Mr. Gaal analyzed FAMIS 129 reports and noted that Petitioner on sixty-one occasions between January 6, 2009 and January 14, 2009, had scanned packages in the afternoon that he had picked up in the morning. The reports did not show that any other courier was scanning packages in the afternoon that had been picked up in the morning. Indeed, contrary to Petitioner's assertion that late scanning was routinely practiced by other couriers, the testimony from all of Respondent's current employees was that they did not scan packages late and such practice was prohibited. In this case, the evidence was clear that Petitioner's action was a serious
violation of Respondent's package processing policy and constituted falsification of records under that policy. Indeed, the amount of falsification by Respondent was the worst violation of the policy that Respondent had seen.
Mr. Gaal asked Petitioner if he was scanning packages late. To his credit, Petitioner admitted to Mr. Gaal that he was picking up packages early in the day but not scanning them until hours later in the day. Petitioner also confirmed his admission in a written statement on the matter.
On January 19, 2009, Petitioner was placed on investigative suspension. He was terminated by Mr. Gaal on January 21, 2009, for regular falsification of records in violation of Respondent‟s Acceptable Conduct Policy. There was no substantive evidence that Petitioner‟s race played a part in Pat Gaal‟s treatment of Petitioner while he was employed by Respondent.
Respondent‟s employee policy provides a multi-step procedure for employees to challenge disciplinary actions with which they disagree. This policy is known as the Guaranteed Fair Treatment Procedure (GFT). Respondent's policy also provides a process to handle complaints of discriminatory treatment known as the Internal Equal Employment Procedure (IEEP). Both of these policies are posted at the Pensacola
station, along with a poster entitled “Equal Employment Opportunity is the Law.”
Petitioner was familiar with both of these processes.
However, Petitioner never submitted an IEEP complaint to Respondent. Instead, Petitioner filed a GFT complaint in January 2009, to challenge his termination. Petitioner's GFT complaint did not include any allegations of discrimination.
The GFT process provides an employee with three levels of review. Step 1 of the GFT process involves the decision of a Managing Director after consultation with the managers involved in the discipline, the complainant and applicable witnesses.
In this case, Managing Director Randy King conducted a telephonic hearing with Petitioner and other witnesses. Again, Petitioner admitted to Mr. King that he employed a practice of making pickups early in the day but not scanning the packages until later in the day to help boost his productivity. Petitioner did not make any allegations of discrimination during the Step 1 review.
After the Step 1 hearing, Mr. King reviewed a summary of a review of daily reports for every courier in Respondent‟s Pensacola station. He did not find any other couriers employing Petitioner‟s falsification practices. Mr. King upheld Petitioner's termination at Step 1 of the GFT process. There
was no evidence that race played any part in Mr. King‟s decision to uphold Petitioner‟s termination at Step 1 of the GFT process.
Petitioner elected to have his termination reviewed in Step 2 of the GFT process. Step 2 of the GFT process involves the review and decision by a Vice President or Senior Vice President of the company. Petitioner‟s termination was upheld at Step 2 of the GFT process by Vice President David Leech. Again, there was no evidence that race played any part in
Mr. Leech‟s decision to uphold Petitioner‟s termination at Step 2 of the GFT process.
Petitioner then elected to have his termination reviewed in Step 3 of the GFT process. Step 3 of the GFT process, involves a review by the Appeals Board. The Appeals Board consists of a rotating group of Respondent‟s senior officers who review the case based on the documents provided to them by Respondent‟s Human Relations Compliance department.
With regard to Petitioner‟s Step 3 GFT appeal, the Appeals Board was not provided with any information regarding Petitioner‟s race or disability status. Petitioner‟s termination was upheld by the Appeals Board at Step 3. As with the other steps in the GFT process, there was no evidence that race played any part in the Appeal Board‟s decision to uphold Petitioner‟s termination at Step 3 of the GFT process.
Petitioner contends that Ron Reaves, a white male formerly employed as a courier for Respondent, is a comparator for purposes of proving his discrimination claim. However, the evidence did not demonstrate that Reaves is a similarly-situated employee to Petitioner and the facts of this case.
The evidence showed that Reaves had an exceptional "nearly spotless" employment record with Respondent and committed a single act of falsification on January 7, 2008, when he manually entered a tracking number into his Power Pad for a delivered package. Reaves‟ act bypassed the requirement that the recipient sign for the package. Pat Gaal terminated Reaves for this single instance of falsification and Reaves filed a GFT complaint opposing his termination.
Reaves‟ termination was upheld by Managing Director Randy King at Step 1 of the GFT process. Mr. King saw Reaves‟ termination for falsification as being a “one-time event,” yet he upheld Reaves‟ termination.
Likewise, Reaves‟ termination was upheld at Step 2 by Vice President David Leech. However, Reaves appealed the Step 2 GFT decision to Step 3, and the Appeals Board reinstated Reaves. The Appeals Board was not provided any information as to Reaves‟ race or disability status.
Upon reinstatement, Reaves was issued a Warning Letter dated March 17, 2008, for the instance of falsification, stating
that he had “improperly applied a Dex 2 residential release to a package requiring direct signature.”
In January of 2006, Petitioner committed a falsification violation, almost identical to that committed by Reaves, when he manually entered a residential release, releasing the package without a signature when a direct signature was required. However, Petitioner was not terminated but received a Performance Reminder, which is comparable to a Warning Letter, from Manager Charles Marshall, dated January 25, 2006, stating that he had “used the approved FedEx Resi Release number” on a customer package when the package was clearly marked “Direct Signature Only.” Importantly, Respondent received more favorable treatment than Reaves since he was not terminated in 2006.
On the other hand, the quantity and pattern of falsification for which Petitioner was terminated in 2009 was a more blatant violation of Respondent‟s falsification policy than the instance of falsification for which Reaves was terminated and later reinstated by the Appeals Board. In fact, Petitioner's 2009 violation was not sufficiently similar in scope as to be comparable to Reaves‟ violation. No other comparative evidence was offered by Petitioner. Given these facts, the evidence does not demonstrate that Petitioner was the subject of an unlawful employment practice based on his race
when he was terminated by Respondent, and the Petition for relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat. (2010).
Section 760.10(1)(a), Florida Statutes (2008), states as follows:
It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
The Florida Civil Rights Act (FCRA), sections 760.01 through 760.11, as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. §2000 et seq. Federal case law interpreting Title VII is applicable to cases arising under the FCRA. See Green v. Burger King Corp., 728 So. 2d 369, 370-371 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996).
Under that law, Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated
or retaliated against him. See Fla. Dep't of Transp. v. J.W.C. Co. 396 So. 2d 778 (Fla. 1st DCA 1981). As such, Petitioner can establish a case of discrimination or retaliation through direct evidence or circumstantial evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997). Direct evidence consists of “only the most blatant remarks, whose intent could be nothing other than to discriminate” on the basis of some impermissible factor. Evidence that only suggests discrimination, or that is subject to more than one interpretation, is not direct evidence. See Carter v. Three Springs Residential Treatment, 132 F.3d 635,
462 (11th Cir. 1998). In this case, Petitioner has not shown any direct evidence of discriminatory intent and must rely on circumstantial evidence to establish such discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 805 (1973), established that an employment discrimination case based on circumstantial evidence involves the following burden- shifting analysis: (a) the employee must first establish a prima facie case of discrimination; (b) the employer may then rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for the employment action in question; and (c) the employee then bears the ultimate burden of persuasion to establish that the employer's proffered reason for the action taken is merely a pretext for discrimination. See also Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st
DCA 1994); Fla. Dep‟t of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla. Dep‟t of Child. & Fam.
Servs., 19 Fla. L. Weekly Fed. D. 268, 2005 U.S. Dist. LEXIS 19261 (N.D. Fla. 2005).
As indicated, in the absence of direct evidence, Petitioner must establish a prima facie case of discrimination by demonstrating that: (1) he is a member of a protected class;
(2) he was subjected to an adverse employment action; (3) his employer treated similarly-situated employees outside of his protected class more favorably; and (4) he was qualified for the job at issue. See Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 842-843 (11th Cir. 2000).
In this case, Petitioner failed to establish that his PTSD substantially limited major life activities. See Middleton v. CSX Transp., Inc., 2008 Dist. LEXIS 24977 (N.D. Fla. Mar. 28, 2008). “[T]he central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people‟s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.” See Toyota Motor Mfg. Ky. v. Williams, 534 U.S. 184, 200-201 (2002). Given the lack of evidence on this issue, the portions of the Petition for Relief related to handicap discrimination should be dismissed.
On the other hand, Petitioner is a member of a protected class for purposes of his racial discrimination claim.
Further, the evidence demonstrated that Petitioner was subject to one adverse employment action when he was terminated.
Additionally, he was qualified for his job as a courier. However, Petitioner failed to demonstrate that a similarly- situated employee of another race was treated more favorably under the same circumstances.
In order to be “similarly situated,” the person to whom Petitioner compares himself “must be nearly identical.” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); see also Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); and Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). If anything, Petitioner received more favorable treatment than Reaves on the 2006 falsification violation. Additionally, Petitioner‟s 2009 falsification violations were quantitatively greater than Reaves‟ one violation and occurred after Petitioner was disciplined for an earlier falsification violation in 2006.
This issue was recently ruled upon by the United States District Court for the Middle District of Georgia pursuant to the standards set by the Eleventh Circuit Court of Appeals (under which Florida‟s federal District Courts sit) in Everett v. FedEx Express, 2010 U.S. Dist. LEXIS 29528 (N.D. Ga. 2010). The Everett Court found the Plaintiff was terminated for intentional falsification of a timecard, but failed to establish
a prima facie case of discrimination because he could not demonstrate that a “similarly situated employee” was treated more fairly. As in this case, Mr. Everett claimed that a courier who delivered a package and failed to properly record the “signature release” code was similarly situated and treated more favorably. The court ruled that the one-time intentional falsifier (Everett) could not use a one-time unintentional falsifier as proof of disparate treatment of a “similarly situated employee.” Id. As in Everett, Petitioner‟s falsification was more frequent and more egregious and is not comparable to the conduct of Reaves. Therefore, Petitioner has failed to establish a prima facie case of racial discrimination and the Petition for Relief should be dismissed.
If Petitioner establishes a prima facie case, only then is the employer required to articulate a legitimate nondiscriminatory reason for the employment action. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The employer has an “exceedingly light burden” in setting forth legitimate, nondiscriminatory reasons for termination. Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983).
Respondent‟s legitimate, nondiscriminatory reason for terminating Petitioner is clear: Petitioner intentionally and repeatedly falsified electronic records in violation of FedEx‟s Acceptable Conduct Policy. Petitioner was on notice that
falsification would be treated as a terminable offense and had been trained as to proper procedures pursuant to company policy.
Courts do not “sit as a super-personnel department that reexamines an entity‟s business decisions.” Elrod v. Sears Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); see also Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997)(stressing that “federal courts do not sit to second-guess the business judgment of employers.”). The court “need only determine that the [respondent] in good faith believed that Petitioner committed the act for which he was terminated.
Elrod, 939 F.2d. at 1470. If Respondent terminated Petitioner “because it honestly believed that the employee had violated a company policy even if it was mistaken in such belief, the discharge is not „because of race‟.” See id. In this case, Respondent's reason for termination was not pre-textual but legitimate.
However, under any analysis of the evidence, the burden of establishing discrimination by a preponderance of the evidence always remains with Petitioner. In this case, there was no evidence that Respondent's reason for termination was a pretext for intentional discrimination. See Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000). As discussed above, there was no evidence that established by a preponderance of the evidence that Respondent discriminated against Petitioner
on the basis of his race. Therefore, the Petition for Relief should be dismissed.
That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice.
DONE AND ENTERED this 2nd day of February, 2011, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2011.
Floyd Middleton, Jr. 820 Maplewoods Drive
R. Clinton Saxton, Esquire Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125
Ben J. Scott, Esquire
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
