STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD SMITH, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1977

)

CITY OF PEMBROKE PINES )

UTILITY DEPARTMENT, )

)

Respondent, )

)

NORMAN A. JACKSON, Executive ) Director, Florida Commission on ) Human Relations, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 18, 1980, in Pembroke Pines, Florida.

APPEARANCES

For Petitioner: Eugene Gillis, Esquire

3025 West Broward Boulevard, Suite 203 Fort Lauderdale, Florida 33311

For Respondent: Steven Josias, Esquire

Post Office Box 23536

Fort Lauderdale, Florida 33307

For Intervenor: Marva A. Davis, Esquire

Assistant General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301

On or about August 28, 1979, Edward Smith, Jr. ("Petitioner") filed a Petition for Relief with the Florida Commission an Human relations requesting relief from an alleged unlawful employment practice. Petitioner alleges that the City of Pembroke Pines, Florida, through it utility department ("Respondent") discriminated against Respondent on the basis of his race in that he was terminated as a city employee because he refused to discuss personal business with city officials pertaining to court appearances; was terminated as a city employee for tardiness, whereas white employees were not; was required to take an unnecessary physical examination to prove his fitness for employment which was not required of white employees; and had detrimental information

placed in his mersonnel file by city employees without prior discussion With him, a procedure which was not followed with white employees.

Respondent answered the Petition, denying the material allegations thereof, and alleging that Petitioner's termination of employment resulted from his failure to furnish Respondent with an emergency telephone number in accordance with city policy, habitual tardiness, and absence from work. Respondent further asserts that Petitioner's termination was in no way racially motivated.

In accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, the Florida Commission on Human Relations requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Thereafter, the Executive Director of the Florida Corirnission on Human Relations ("Intervenor") filed a Motion to Intervene pursuant to the provisions of Rule 9D-8.13, Florida Administrative Code, which petition was granted. Final hearing in this cause was scheduled for January 18, 1980, by Notice of llearinc: dated November 7, 1979.

At the final hearing, Petitioner testified in his own behalf and called Valerie C. Smith as an additional witness. Petitioner offered Petitioner's Exhibits Nos. 1 through 14, inclusive, each of which was received into evidence. Respondent called Willie Lee Rogers, Walter Otto, John C. Depp, Leo Feula, and Theresa De Rosa as its witnesses. Respondent offered no exhibits.

FINDINGS OF FACT

1. Petitioner, a black male, was hired on May 17, 1978, by Respondent as a Maintenance Worker I, and was assigned to the water and sewer section of Respondent's utility department. In accordance with Respondent's personnel rules, Petitioner was required to serve a probationary period of six months, the purpose of which was "[t]o provide [Petitioner] with an opportunity to demonstrate basic qualifications and a desire to perform the duties as assigned

   . . . , and [t]o provide [Respondent] with an opportunity to observe [Petitioner], his work habits and attitude."

   
   

2. Under Respondent's personnel rules, "probationary employees" are not afforded many of the protections enjoyed -- by "regular employees" who have completed their probationary employment period. For example, vacation days and sick leave days are not accrued during an employee's probationary period, nor are probationary employees entitled to reimbursement for time off taken due to illness during the probationary period. Whereas "regular employees" are entitled to leaves of absence without pay for a period not to exceed one year for sickness, disability, pregnancy or , . . other good and sufficient reasons which are considered to be in the best interests of (Respondent] . . .", no such privileges are enjoyed by "probationary employees". In addition, although Respondent's personnel rules allow for dismissal of any employee for cause, dismissals of "regular employees" may not take effect until at least ten days from the date a written statement of the reasons for dismissal is subpitted to the employee and his department head. Finally, one of the grounds for dismissal "for cause" for any city employee is " . . . failure to maintain a satisfactory attendance record or properly report absence due to illness, emergency, or other reason".

   
   

3. At the time of his initial employment, Petitioner completed and filed with Respondent an "Application for Employment" form and a form entitled "Required Personnel Information, both of which provided telephone numbers at which Petitioner could be contacted in case of emergency.

4. While employed by Respondent, Petitioner's job consisted of a five-day work week, during which Petitioner was to report to work at 7:30 a.m., and leave at 4:00 p.m. During the period of his employment it was possible for Petitioner to have worked a total of 44 days, with one day off for the July 4 holiday. During this 44-day work period, Petitioner was late in checking in for work a total of 25 times, and was absent from work for personal reasons a total of approximately 4 days. Petitioner was cautioned on several occasions by his superiors, including his foreman, a black male, that continued tardiness and absences could endanger his continued employment by Respondent. Although Respondent was never absent from his duty station without permission from his supervisors, he never gave advance notice of such requests, instead delaying such requests until the day on which he was to absent himself from his job.

   
   

5. As a result of Petitioner's tardiness and absences, his foreman was unable to fully evaluate his abilities as an employee in that Petitioner never worked a full week during the time that he was employed by Respondent.

   
   

6. By letter dated July 13, 1978, Petitioner was advised by Respondent's Director of Utilities that he would be separated from the work force of Respondent effective the following day. The reasons civen by Respondent for terminating Petitioner's employment were that he had failed to furnish an emergency telephone number, he was habitually late for work each morning, and had been constantly absent from work.

   
   

7. There is a total absence from the record in this proceeding of any direct evidence that Petitioner's discharge was in any way related to race. Petitioner testified that the question of race never was discussed between him and his supervisors, and Petitioner's forenan, a black male, also testified that no such discussion ever occurred, and that Petitioner's discharge was the direct result of his poor attendance record.

   
   

8. Another white male employee of Respondent was alleged by Petitioner to have received preferential treatment, though his work record with respect to tardiness was similar to that of Petitioner. However, it appears from the record that this white employee had been a long-time employee of Respondent, and was, therefore, not in "probationary" status. It further appears that that employee's record of tardiness was not as extensive as Petitioner's. The record also clearly establishes that Respondent placed a written reprimand in the white employee's file, which is a procedure allowed under Respondent's personnel rules.

   
   

9. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subiect matter and the parties to this action. Section l20.57(1), Florida Statutes.

    
    

11. At all times material hereto, Section 13.261, Florida Statutes, provided, in part, that:

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire - any individual, or otherwise to discriminate against any individual with respect to compensa- tion, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, nationai origin, age, handicap, or marital status.

1. Respondent is an "employer" within the meaning of Section 13.261, Florida Statutes.

   
   

2. Petitioner has failed to establish by substantial competent evidence that his discharge was in any way racially motivated. In fact, the evidence in this proceeding clearly establishes that, not only was his discharge not racially motivated, but ample justification existed for the action taken by Respondent on the basis of Petitioner's work record.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order bc entered by the State of Florida, Comjnission on Human Relations, dismissing the Petition for Relief, and denying Petitioner's request for damages and attorney's fees.

RECOMNDED this 27th day of February, 1980, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Eugene Gillis, Esquire 3025 W. Broward Boulevard,

Suite 203

Fort Lauderdale, Florida 33311

Steven Josias, Esquire

P. O. Box 23536

Fort Lauderdale, Florida 33307

Marva A. Davis, Esquire Assistant General Counsel Florida Commission on Human

Relations

2562 Executive Center Circle, cast Tallahassee, Florida 32301

Docket for Case No: 79-001977

Orders for Case No: 79-001977