STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATHANIEL E. SMITH, )

)

Petitioner, )

)

vs. )

)

INTERNATIONAL PAPER COMPANY, ) CASE NO. 79-2169

) FCHR NO. 127-79

Respondent, )

vs. )

)

NORMAN E. 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, R. L. Caleen, Jr., held a public hearing in this cause on April 8, 1980, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Algia R. Cooper, Esquire

Knowles, Randolph & Cooper

121 1/2 South Monroe Street Tallahassee, Florida 32301

For Respondent: Constance McAllister, Esquire

International Paper Company

220 East 42nd Street

New York, New York 10017

For Intervenor: Aurelio Durana, Esquire

Assistant General Counsel

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

STATEMENT OF THE ISSUE

Whether, as alleged, Respondent, International Paper Company, violated the Human Rights Act of 1977, by discharging Petitioner from employment because of his race or color, and, if so, the affirmative relief which should be granted.

CONCLUSIONS AND RECOMMENDATION

Conclusions:

The company established that Petitioner was found sleeping on duty after receiving a prior warning that further neglect of duty would be grounds for his discharge. Such conduct by Petitioner constituted neglect of duty and provided a legitimate, nondiscriminatory reason for his discharge.

Petitioner failed to prove, by statistical or comparative evidence, that this stated reason for his discharge was a pretext, or mask for a discriminatory motive.

Since Petitioner did not show that he was

discharged because of his race or color, the Company's action did not constitute an unlawful employment practice in violation of the Human Rights Act of 1977. [Section 23.167(1), Florida Statutes]

Recommendation:

That the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED.

Background:

On October 11, 1978, Petitioner, a black male, filed with the Florida Commission on Human Relations (hereinafter "Commission"), a discrimination complaint charging Respondent, International Paper Company (hereinafter "Company"), with unlawfully discharging him from his employment because of his race or color.

On June 6, 1979, after investigating the charges, the Commission entered a "Determination" that there was reasonable cause to believe that an unlawful employment practice had occurred. On August 15, 1979, after unsuccessful efforts to conciliate Petitioner's complaint, Petitioner filed a Petition for Relief from the Company's alleged unlawful employment practice.

On October 25, 1979, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings for assignment of a Hearing Officer and the conducting of a Section 120.57(1), Florida Statute (1979), hearing. The Commission's subsequent Motion to Intervene in the proceedings was granted.

On November 28, 1979, the Company filed a Motion to Dismiss the Petition for Relief on several grounds. The motion was denied. The Company also filed its Answer to the Petition, denying that it had engaged in the alleged unlawful employment practice.

On February 27, 1980, Petitioner filed a Motion for Summary Judgment, which was denied.

By Notice of Hearing, dated November 9, 1979, final hearing was set for February 4, 1980. The Petitioner's subsequent motion to continue the hearing was granted and hearing was reset for March 5, 1980. On March 4, 1980, the Company moved to continue the hearing, which motion was granted and final hearing was rescheduled for April 8, 1980.

At final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits Nos. 1 through 26, 1/ inclusive, each of which was received into evidence. The Company called E. J. Weathers and Marion Daniels as its witnesses, and offered Respondent's Exhibits Nos. 1 through 6, inclusive, each of which was received in evidence. At the close of hearing, the parties requested into evidence. At the close of hearing, the parties requested the opportunity to file proposed findings of fact and conclusions of law by April 21, 1980. On April 18, 1980, due to an automobile accident involving her husband, counsel for the Company requested additional time within which to submit proposed findings of fact and conclusions of law. After hearing arguments of the parties, the time for filing was extended to May 2, 1980, with the Petitioner and the Commission granted the additional right to file reply memoranda within five working days from the Company's filing. The parties agreed that the thirty-day period for submittal of the Recommended Order to the Commission would begin to run upon receipt of the proposed findings of fact and conclusions of law, or the reply memoranda, whichever was later.

FINDINGS OF FACT

1. Petitioner, a twenty-five year old black male, was hired as a general laborer by the Company on August 4, 1972, and continued in the Company's employment until his discharge on August 28, 1978. During the course of his employment, Petitioner worked at the Company's Panama City pulp and paper mill as a laborer, power plant utility man, turbine operator, assistant water treatment plant operator, and finally, as a power plant tender. Each new job assignment was a promotion and was accompanied by a salary increase. At the time of his discharge by the Company, Petitioner was employed as a power plant tender, and received $9.08 per hour. (Testimony of Petitioner, P.E. 2, 4, 5, 6,)

   
   

   Petitioner's Performance Record

   
   

2. During his six years of employment with the Company, Petitioner's work performance was periodically reviewed every six months by this supervisors through completion of an Employee Performance Review Form. His performance records reflect that his work performance was marginally satisfactory, generally meeting minimum Company standards, although falling below average in several areas. He was frequently characterized by his supervisors as an individual who was lazy, laced initiative, needed frequent reminders to do his work, and not dependably present at his work station. His last periodic performance evaluation, dated April 6, 1978, noted that his performance, after two and one half years on the job, had not improved, and that he "must improve his performance during the next period." (P.E. 9) The Petitioner's reactions, during the counseling session on that performance review, were characterized by his supervisor as "passive-unconcerned." Id. (Testimony of Petitioner, P.E. 8, 9)

   
   

   Petitioner's Disciplinary Record Prior to Discharge

   
   

3. During his employment with the Company, and prior to the final infraction resulting in his discharge, Petitioner was subject to disciplinary actions by the Company on five separate occasions. Each disciplinary action was evidenced by an Employee Warning Record completed by the Petitioner's foreman at, or near, the time of the infractions. The first three disciplinary infractions occurred on July 8, 1974, January 14, 1976, and May 20, 1977. Each

   infraction involved defective work performance by Petitioner, or his failure to follow proper work and safety procedures. In each case, the Company action consisted of reprimanding the Petitioner, and warning him that further occurrences of such nature could result in stronger or more serious disciplinary action. (R.E.2)

   
   

4. The next disciplinary infraction by Petitioner occurred during May, 1977. Petitioner had been counseled on four separate occasions during the work week beginning May 22, 1977, for being absent fro his area of responsibility, and not answering his calls. On May 27, 1977, he was again reminded of the importance of being in his assigned work area so that he could hear calls and immediately respond. Later that day, Petitioner was told to go to the fourth floor and stand by for a call to start the load burners. When he was later called from the control room, Petitioner did not respond. Upon checking, the shift foreman found him sitting on the fourth floor porch. The pertinent Employee Warning Record concluded:

   
   

   "Communication is a critical part of the Power Plant, and it has been reemphasized to Smith that he must be in the area where he can hear his calls and respond. He understands that a recurrence of this nature will result in more severe disciplinary action." (R.E. 2)

   
   

5. On July 7, 1978, Petitioner, without authorization, used a company telephone to make personal long-distance calls at Company expense. In lieu of discharge, the Petitioner was lid off for fourteen working days, and required to reimburse the Company for the telephone charges connected with his calls. The Company expressly informed Petitioner that "further acts of neglect of duty and/or improper use of telephones will be considered as cause for discharge". (R.E. 2)

   
   

   Petitioner's Discharge for Repeated Acts of Neglect of Duty

   
   

6. Since 1973, the Petitioner performed various jobs working in the company power plant which furnishes essential power to its Panama City pulp and paper mill. The mill is dependent upon the power plant for its electrical power

   - a ten minute interruption of power would require the mill to shut down production. Because of the sustained steam pressure, high temperature conditions, and the possibility of ruptured valves and pipes, work at the power plant can be both dangerous and difficult. Power plant workers must be able to respond immediately and effectively to the exigencies associated with operating the plant, and take remedial action. (Testimony of Weathers, Daniels, P.E. 8 and 9)

   
   

7. On August 16, 1978, Petitioner worked as a power tender at the mill power plant during the 11:00 P.M. - 7:00 A.M. shift. He became overheated while working in the cinder pit area and asked for and received permission to take a break to "cool-off." Ten to fifteen minute breaks for such purposes were normally authorized at the plant, since no regular lunch hour or breaks were specified during the production workers' eight hour shift. Production workers, such as Petitioner, were required, however, to be on duty, i.e., within the work area or responsive to calls, at all times during their eight hour shifts. (Testimony of Weathers, Daniels, Petitioner)

8. Upon receiving permission to take a break, Petitioner proceeded to the porch and then to the No. 5 men's bathroom. After Petitioner remained absent for twenty - twenty-five minutes, his lead worker, E. J. Weathers became concerned and sought to locate him by calling the control room, and repeatedly paging him on the house loudspeaker system. That system has loudspeakers located throughout the work area, including the bathrooms. (Testimony of Petitioner, Weathers)

   
   

9. After Petitioner failed to respond to Weathers' efforts to locate him, Weathers called and reported the Petitioner's absence to his shift supervisor, Marion Daniels. Daniels told him to search for and locate the Petitioner. Five minutes later, Weathers located the Petitioner asleep, seated on the toilet, located in the first stall in the men's bathroom. Weathers, then, reported the incident to Daniels, without waking Petitioner, because Weathers had previously told him not to wake Petitioner if he were found sleeping. Daniels came immediately to the bathroom, where Petitioner remained seated on the toilet, asleep, with his head down, eyes closed, and pants down around his ankles. Daniels called out Petitioner's name, and shined a flashlight in his face - but Petitioner did not respond. Finally, Daniels turned up the squelch volume on his radio, and Petitioner awoke. Petitioner denied he had been sleeping. Approximately thirty - thirty-five minutes elapsed between the commencement of Petitioner's "cooling-off" break, and the awakening of him from his sleep. (Testimony of Weathers, Daniels and Petitioner)

   
   

10. Daniels, then, filed a report on the incident with the power plant supervisor. The next day, the superintendent told Petitioner that he would be discharged and informed him of his appeal rights. On August 19, 1978, a meeting was held between the mill manager, union representatives, and Petitioner to discuss the incident. At the close of the meeting, the Petitioner was advised by the mill manager that he was "layed [sic] off until further investigation." On August 25, 1978, Petitioner was informed, in writing, by the mill manager that he was discharged from employment, effective August 22, 1978, for "repeated acts of neglect of duty." (Testimony of Petitioner, P.E. 12)

    
    

    Grounds for Discharge Under Labor Agreement

    
    

11. Petitioner's discharge from employment was subject to a Labor Agreement between the Company and two labor unions represented at the Panama City mill. The Agreement lists fifteen specific grounds for the discharge of mill employees. The grounds are not necessarily mutually exclusive, and include, without further elaboration, "neglect of duty," and "deliberate sleeping on duty." An employee's previous disciplinary record may be considered in determining the appropriate disciplinary action, but;

    
    

    "[w]hen an Employee has received no disciplinary action for a period of one year, prior disciplinary warnings for minor offenses will not be used against him." (P.E. 1) (Testimony of Daniels)

    
    

12. Several of the more specific grounds listed for discharge, such as "deliberate sleeping on duty," are interpreted by the Company's management as falling within the more general ground for discharge - "neglect of duty." An employee can be discharged for one or more of the grounds which apply to a given factual situation. (Testimony of Daniels)

    Company's Disciplinary Action Against Caucasian Mill Workers

    
    

13. On July 7, 1978, Michael Dewberry, a white male employee, improperly used Company telephones to make long-distance personal calls at the Company's expense. As with Petitioner, he was laid off for fourteen days, required to reimburse the Company, and warned that further acts of neglect of duty or improper use of telephones would be grounds for discharge. He did not subsequently neglect his duty or improperly use the telephones. (Testimony of Petitioner, P.E. 17)

    
    

14. Bill O'Neal, a white male employee, was laid off on June 24, 1976, for being under the influence of alcohol. He was given a thirty-day leave of absence with the understanding that he would make a good faith effort at rehabilitation, and expressly warned that future misconduct of such nature would be considered as grounds for discharge. On September 9, 1976, O'Neal was, again, disciplined for reporting to work under the influence of alcohol.

    Instead of being discharged, O'Neal was suspended from work, and advised that reinstatement would be considered only after he provided proof of having received professional assistance. (P.E. 20)

    
    

15. Edward Demers, a white male employee, was disciplined for numerous infractions. On January 1, 1978, Demers was reprimanded for pulling a knife in an argument with another employee; on March 14, 1978, and June 16, 1978, he was reprimanded for reporting late to work, and not reporting prior to the start of his shift, respectively; on June 27, 1978, he was reprimanded for being uncooperative with fellow workers, inattentive to instructions, slow in performing his duties, and making personal telephone calls; and, on August 25, 1978, he was suspended from work for seven working days for defective work, and warned that neglect of such magnitude would not be tolerated and recurrence would result in "the most severe disciplinary action." Occasionally, however, Demers performed his work in a good, and above average, manner. (P.E. 22)

    
    

16. From January 1, 1976, to December 31, 1978, eight Company employees were disciplined for sleeping on duty - three were white and five black. Each employee, irrespective of color, received the identical punishment - a seven day suspension. Company disciplinary records referred to these as "sleeping on job" rather than "neglect of duty" offenses. (P.E. 26)

    
    

17. From January 1, 1976, to December 31, 1978, ten Company employees (five black, five white) were discharged from employment for disciplinary reasons. Six of these employees were discharged after having received prior Company warnings that another infraction would be grounds for, or result in, discharge. (P.E. 26)

    
    

18. The Company has promulgated Absentee Control Guidelines which allow three or four unauthorized absences within a twelve month period before discharge can be considered. (R.E. 1)

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, Florida Statutes (1979).

    
    

    Unlawful Employment Practice: Definition

    
    

20. Section 23.167, Florida Statutes (1979), of the "Human Rights Act of 1977," provides, in pertinent part:

    
    

    "(1) It is an unlawful practice for an employer:

    
    

    1. To discharge . . . or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color "

       
       

       Persons aggrieved by a violation of this provision may file a complaint with the Florida Commission on Human Relations. If the Commission determines that an unlawful employment practice has occurred, it must issue an order prohibiting the practice and providing affirmative relief from its effects, including reasonable attorney's fees. Section 23.167(10), (13), supra.

       
       

21. The central issue in this case is whether the Company's discharge of Petitioner from his employment constitutes an unlawful employment practice in violation of the above statutory proscription.

    
    

    Guidance Offered by Federal Civil Rights Act of 1964

    
    

22. Title VII of the Federal Civil Rights Act of 1964, as amended, provides, in pertinent part:

    
    

    "It shall be an unlawful employment practice for an employer -

    
    

    (1) To . . . discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color . . . ." [42 U.S.C. 200e-2(a)]

    
    

    The State statutory proscription, infra, is markedly similar to, and patterned after the Federal Civil Rights Act. Thus, Federal cases construing the Federal Act are persuasive and offer guidance to interpreting the State Act:

    
    

    "If a Florida Statute is patterned after a Federal law, on the same subject, it will take the same construction in the Florida courts as

    its prototype has been given in the Federal courts insofar as such construction is harmonious with the spirit and policy of the Florida Legislature on the subject." Pasco County School Board v.

    Florida Public Employees' Relations Commission,

    353 So.2d 108, 116 (4 Fla. 1st DCA 1977).

    
    

    Disparate Treatment

    
    

23. To find an unlawful employment practice in this case, the evidence adduced at hearing must show that the Company discharged the Petitioner because (causal connection) of his race. In order to prove causal connection between his discharge, and his race, Petitioner relies upon comparative evidence to establish disparate, or different treatment. "Disparate treatment" means simply that the employer "treats some people less favorably than others because of their race . . . ." International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335-36 (1977). Thus, if the Company disciplined a person of one race or color differently from similarly situated persons of another race or color, and there is no adequate explanation for the disparate treatment, it is reasonable to infer that the Company's actions were racially motivated. Discriminatory motive may be proved by direct or circumstantial evidence. Peters v. Jefferson Chemical Co., 516 F.2d 447 (5th Cir. 1975).

    
    

24. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court determined the order and allocation of proof in the individual disparate treatment cases: (1) the Complainant must present a prima facia case of racial discrimination; (2) the employer then has the burden of to articulate some legitimate, nondiscriminatory reason for his action; and (3) the Complainant then has the burden of proving by a preponderance of evidence that the employer's reason was a pretext for discrimination. See Causey v. Ford Motor Co., 516 F.2d 416, 420n.6 (5th Cir. 1975); Peters v. Jefferson Chemical Co., supra, 449-51; Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1254 (5th Cir. 1977).

    
    

25. The parties agreed, by Prehearing Stipulation, that the McDonnell Douglas allegation of proof, infra, applies to this proceeding.

    
    

    Prima Facia Case: Petitioner's Initial Burden

    
    

26. Petitioner presented sufficient evidence to establish a prima facia case of disparate treatment, and thereby met his initial burden. Petitioner belongs to a racial minority, held a job with the Company for six years, and was discharged from his employment for "repeated acts of neglect of duty." He testified he was discharged on August 16, 1978, when he was found in the men's bathroom while on an authorized fifteen minute "cooling-off break," that white employees of the Company, with comparable or worse disciplinary records, had not been discharged.

    
    

27. An employer has the right to discipline and discharge employees for any reason whatsoever, as long as it is not a reason specifically prohibited by statute. Richardson v. Hotel Corp. of America, 332 F. Supp. 519, 521 (E.D.La.), Aff'd mem. 467 F.2d 951 (5th Cir. 1972), Tims v. Board of Education of McNeil, Ark., 452 F.2d 551, 552 (8th Cir. 1971). While an employer may freely determine criteria for discipline and discharge of its employees, such criteria must be "applied, alike to members of all races." McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 (1976). An employer may treat persons unfairly, as long as persons similarly situated are treated alike, irrespective of race or color. See, e.g., Morita v. Southern Cal. Permanente Medical Group, 541 F.2d 217, 218-20 (9th Cir. 1976), cert. denied, 429 U.S. 1050 (1977).

28. Petitioner also offered statistical evidence in support of his individual disparate treatment claim. That evidence showed that five out of eight Company employees disciplined between January 1, 1976, and December 31, 1978, for sleeping on duty were black. Statistical evidence can be useful as background evidence, but it has rarely been determinative in a single-employee discharge case premised on disparative treatment. See Schlei, Employment Discrimination Law, 1154-1156 (1976); 4-5, 132-133 (1979 Supp.). The limited use of class-based evidence in proving an individual discrimination case has been recognized. McDonnell, supra, at 805. The probative value of such evidence depends on, (1) the extent of disparity between the treatment of the different classes, Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974), vacated on other grounds, 431 U.S. 395 (1977), (2) the extent to which it is tailored to the individual discrimination complaint, Rich v. Marin Marietta Corp., 452 F.2d 331 (10th Cir. 1975), and (3) sample size, Mayor v. Educational Equality League, 415 U.S. 605 (1974). Because Petitioner's statistical evidence is deficient in each of these areas, it lacks significant probative value. See, e.g., Turner v. Texas Instruments, supra, at 1257; Adams v. Reed, 567 F.2d 1283 (5th Cir. 1978); Morita, supra, at 220.

    
    

    Legitimate Nondiscriminatory Reason For Discharge: The Company's Burden

    
    

29. Petitioner having presented a prima facia case, the burden of going forward with the evidence shifts to the Company to articulate a legitimate, nondiscriminatory reason for its action in discharging Petitioner. Furnco Construction Co. v. Waters, 438 U.S. 567, 578 (1978); McDonnell, supra at 802. The Company is not required to prove absence of discriminatory motive. Keene State College v. Sweeney, 439 U.S. 24 (1978).

    
    

30. Here, the Company articulated a legitimate, nondiscriminatory reason for its action-repeated acts of neglect of duty by Petitioner. Petitioner's record reflects marginal work performance, and repeated disciplinary infractions. In July, 1978, he was disciplined for an infraction, and expressly warned that any further acts of neglect of duty would be grounds for discharge. One month later, Petitioner, while on duty and required to be available to respond to work calls, was found asleep in the men's bathroom. Repeated calls for Petitioner over the house speaker system went unheeded.

    
    

    Company's Nondiscriminatory Reason A Mere Pretext:

    Petitioner's Ultimate Burden

    
    

31. The Company having articulated a nondiscriminatory reason for its discharge of Petitioner, the Petitioner must establish, by a preponderance of evidence, that such reason is pretextual - a mask for a discriminatory motive. McDonnell, supra, at 804. Petitioner failed to satisfy this burden of proof.

    
    

32. In quality of the comparative evidence presented by Petitioner to show unequal treatment is critically important. Valid comparisons require that the employees involved be similarly situated to Petitioner.

    
    

33. The Company argues that the only similarly situated employee is Michael Dewberry - who committed the same infraction as Petitioner on July 7, 1978, and received the identical punishment and warning. Unlike Dewberry, Petitioner subsequently committed another act of negligent duty - sleeping on duty - which, the Company asserts justifies Petitioner's discharge.

34. The Petitioner contends that two white employees - Bill O'Neil (laid off indefinitely, after prior warning for being under the influence of alcohol) and Edward Demers (with a purportedly worse overall record of disciplinary infractions, including pulling a knife on another employee) - are similarly situated to Petitioner for comparison purposes.

    
    

35. To be similarly situated to Petitioner for comparison purposes, an employee should have a similar work performance and disciplinary record. The disciplinary record should include the commission of a disciplinary infraction after an explicit prior warning by the Company that such infraction would result in, or justify, the extreme penalty - discharge. The evidence indicates that the existence of a prior warning (that a further infraction could result in discharge) is an important factor in whether an employee is discharged. 2/

    Six of the ten employees discharged between January 1, 1976, and December 31, 1978, had committed infractions after receiving such prior warnings.

    
    

36. The evidence shows that Petitioner performed marginally satisfactory work and had a history of disciplinary infractions. After a negligent duty infraction during July, 1978, the Company explicitly warned Petitioner that further acts of neglect of duty would be grounds for discharge. During the next month, Petitioner, while sleeping in the men's bathroom, failed to acknowledge or respond to repeated work calls. Such conduct in Petitioner's work environment constituted neglect of duty under the Labor Agreement and provided good cause for his discharge.

    
    

37. To establish his disparate treatment claim, i.e., that he was discharged while similarly situated white employees were not, Petitioner points, first, to a single white employee - Bill O'Neil - who committed an infraction after receiving a prior warning and was not discharged. O'Neil's infraction, however, stemmed from his alcoholism - a diseased condition due to excessive use of alcohol. Certainly, the indefinite lay off of O'Neil, with reinstatement possible only after proof of having received professional treatment, was justified by the nature of his infraction.

    
    

38. Next, Petitioner offers Ed Demers as an example of a white employee with an overall disciplinary record of comparable seriousness who was not discharged. Demers was punished for five disciplinary infractions during 1978 - one of which involved pulling a knife on a fellow employee. Careful examination of Demers' record reveals several distinguishing features. Two of his five infractions involved "absences without notice" offenses; and the Company's Absentee Control Guidelines permit 3 or 4 such offenses during a twelve month period before discharge can be considered. Upon his last defective-work infraction, Demers was laid off for seven working days, and explicitly warned (similar to Petitioner) that recurrence would result in the most severe disciplinary action. Although Demers' work performance shows marginally satisfactory work (similar to Petitioner), it also shows occasional good and above average work - a feature absent form Petitioner's records.

    
    

39. In short, the Company's failure to discharge Demers is explained by the nature of his offenses and the quality of his historical work performance. The Company has imposed increasingly severe punishment upon him, and given him a final discharge warning. No evidence was presented to show that he committed an infraction after receiving such a warning.

    
    

40. The Company's comparable treatment of Petitioner and the white employees shows it has administered, to the extent practical, uniform work and disciplinary rules. Any disparity in treatment has been adequately explained.

    As evidenced by our criminal justice system, it is exceedingly difficult to impose fair and uniform punishments when the individuals and offenses involved are invariably unique. An occasional lack of precise equivalency does not, in itself, establish a discrimination claim. See, e.g., Roller v. City of San Mateo, 572 F.2d 1311 (9th Cir. 1977); Brown v. Raston Purina Co., 557 F.2d 570 (6th Cir. 1977). Even if, arguendo, Demers and Petitioner were similarly situated for comparison purposes, the Company's disciplinary action in each case does not, by itself, establish Petitioner's ultimate disparate treatment claim.

    
    

41. In summary, it is concluded that Petitioner has not shown that the Company discharged him because of his race or color. The Company's action against Petitioner does not, therefore, constitute an unlawful employment practice in violation of Section 23.167(1), supra.

    
    

42. To the extent that the proposed findings of fact filed by the parties are not incorporated in this Recommended Order, they are rejected as either irrelevant or immaterial to the issues for determination, not supported by competent substantial evidence, or as constituting conclusions of law as opposed to findings of fact.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED.

DONE and ENTERED this 5th day of June, 1980, in Tallahassee, Florida.

R.L. CALEEN, JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ Petitioner's and Respondent's exhibits will be referred to as "P.E. " and R.E. ," respectively.

2/ "One critical factor [in whether courts have sustained discharges] is whether or not the discharged employee was given repeated warnings and an opportunity to improve . . . ." Schlei, Employment Discrimination Law, supra, p. 513.

COPIES FURNISHED:

Algia R. Cooper, Esquire

121 1/2 South Monroe Street Tallahassee, Florida 32301

Constance McAllister, Esquire International Paper Company

220 East 42nd Street

New York, New York 10017

Aurelio Durana, Esquire Assistant General Counsel Florida Commission on Human

Relations

2562 Executive Center Circle, East Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE FLORIDA COMMISSION ON HUMAN RELATIONS

NATHANIEL E. SMITH,

Petitioner,

vs. FCHR No. 127-79

DOAH No. 79-2169

INTERNATIONAL PAPER COMPANY,

Respondent,

vs.

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

Intervenor.

/

Order No. 810003

The following Commissioners participated in the disposition of this matter:

Commissioner Melvin Levitt, Vice-Chairperson Commissioner Robert Billingslea

Commissioner Cynthia Moore Chestnut Commissioner Elvira M. Dopico Commissioner Marjorie Hart Commissioner Robert Joyce Commissioner Thomas H. Poole, Sr.

APPEARANCES: ALICIA R. COOPER, ESQ., 121 1/2

South Monroe Street, Tallahassee, Florida, 32301, Attorney for Petitioner.

CONSTANCE MCALLISTER, ESQ., International Paper Company, 77 West 45th Street,

New York, New York 10017, Attorney for Respondent.

AURELIO DURANA, ESQ., 2562 Executive

Center Circle, East, Suite 100, Montgomery Building, Tallahassee, Florida 32301, Attorney for Intervenor.

I.

Preliminary Matters

On October 11, 1978, Petitioner, a black male, filed a complaint of discrimination with this Commission, pursuant to the Human Rights Act of 1977 [Part IX, Chapter 23, Florida Statutes (1979)), alleging that Respondent, International Paper Company had committed an unlawful employment practice by discharging him on the basis of his race or color. Petitioner alleges that he was unlawfully discharged on or about August 22, 1978.

As required by Part IX, Chapter 23, F.S., and Rule 9D-9.03, F.A.C., the allegations contained in the complaint were investigated by this Commission's Office of Field Services which forwarded its investigative report to the Executive Director pursuant to Commission Rules. On June 15, 1979, the Executive Director issued a Determination: Cause, Pursuant to Rule 9D-9.04, F.A.C., which concluded that the investigation revealed reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977. Subsequent to the issuance of the Determination efforts were made to conciliate this matter. Upon failure of the conciliation efforts, on August 15, 1979, the Petitioner filed a Petition for Relief from Respondent's alleged unlawful employment practice. The petition was duly referred to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct formal evidentiary proceedings under Section 120.57(1), Florida Statutes.

After due notice, a hearing was held in this matter at Tallahassee, Florida, before R.L. Caleen, Jr., Hearing Officer, pursuant to the provisions of Chapter 120, F.S., and Chapter 9D-8, F.A.C.

II.

Findings of Fact

The Recommended Order of the Hearing Officer was issued on June 5, 1980. A copy of the Recommended Order is fully set forth as an appendix to this Order.

On June 26, 1980, Petitioner and Intervenor, respectively, filed their Exceptions (and supporting memoranda) to the Hearing Officer's Recommended Order. On the same date, Respondent filed its Brief urging the Commission to adopt the Recommended Order of the Hearing Officer. On October 31, 1980, the oral argument was held to consider the Hearing Officer's Recommended Order and the exceptions thereto.

Section 120.57(1)(b)(9), F.S., provides that an agency shall not reject or modify a DOAH Hearing Officer's findings of fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceeding did not comply with the essential requirements of law. In reviewing the Hearing Officer's findings of fact, the Commission is cognizant of the fact that such findings should be afforded great weight as the Hearing Officer is the trier of fact who is best able to evaluate the credibility of witnesses and resolve conflicting testimony. Having considered the Recommended Order of the Hearing Officer and the complete record of proceedings in this cause, the following findings are made:

1. The Hearing Officer found that during his six years of employment with the Respondent's company, Petitioner's work performance was "marginally satisfactory." This finding of the Hearing Officer is rejected as not being supported by substantial competent evidence of record. The record clearly establishes that Respondent promoted the Petitioner and granted him concurrent salary increases on four (4) separate occasions (p. 4, R.O. and TR 21-24) 1/ On the other hand, the evidence of record does not show that Respondent ever promoted the similarly situated white employee, Bill O'Neal.

   
   

2. The Hearing Officer found that the similarly situated white male, Bill O'Neal, was suspended from work and "advised that reinstatement would be considered only after he provided proof of having received professional assistance." (pp. 9, 16, R.O. and PE 20). To the contrary, the record shows that on June 21, 1976, Respondent warned O'Neal that if he again reported for work under the influence of alcohol, it would be cause for discharge. Subsequently, on September 6, 1976, O'Neal again reported for work under the influence of alcohol. (TR 48). For this infraction, O'Neal was suspended from work until he could provide "positive documented proof of his efforts" to bring his alcoholism under control. Sometime thereafter, O'Neal did return to work but there is no evidence of record to show that O'Neal ever furnished Respondent with documentation to establish the efforts taken to overcome his alcoholism. Thereafter, on or about January 31, 1978, O'Neal departed the job site never to return (PE 20). Accordingly we reject the Hearing Officer's finding on this issue as not being supported by the competent substantial evidence of record.

III.

Conclusions of Law

1. Pursuant to Commission Rules 9D-8.13, F.A.C., and Section 120.52(10), F.S., the Executive Director of this Commission was granted leave to intervene in the proceedings before the DOAH Hearing Officer (HO Order of March 5, 1980). Accordingly, the Hearing Officer's references to "the Commission" as a party to this proceeding are in error and all references thereto should be substituted with the words "Executive Director".

2. The Hearing Officer's Conclusion of Law in paragraph 5, page 11 and paragraph 7, page 18, that the Petitioner must show that he was discharged because of his race, in order to prove discrimination, is hereby rejected as being contrary to law. The Hearing Officer correctly concluded that the case law under Title VII of the Civil Rights Act is persuasive in interpreting the Florida law on the same subject. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977). However, the applicable legal standard in cases such as this is that "but for the discrimination Petitioner would not have been discharged. In McDonald v. Santa Fe Trail Trans. Co., 96 S. Ct. 2574 (1976), the Court held:

   
   

   The use of the term "pretext" in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies. . .no more is required to be shown than that race was a "but for" cause.

   
   

   96 S. Ct. 2574, 2580 n. 10.

   
   

   Where a Petitioner can show that race played "some" part in the challenged actions, the complaining party will have satisfied the legal requirements of proof of his disparate treatment case. Petitioners need not prove that race "played the only part or even the controlling one." Jones v. Trailways Corp., 20 FEP Cases 1541, 21 EPD 30, 322, at 12,749 (D.D.C. 1979)

   
   

3. The Hearing officer's Conclusions of Law on page 15 through 17 of the Recommended Order are rejected, to the extent indicated herein below, as being contrary to the Findings of Fact and as not being supported by law. The Hearing Officer erroneously concluded that in order for any of Respondent's employees to have been similarly situated to Petitioner, the employee's "disciplinary record should include the commission of a disciplinary infraction after an explicit prior warning by the Company that such infraction would result in, or justify, the extreme penalty - discharge." (p. 15, R.O.). The standard applicable in instances of disparate treatment requires that the alleged acts must be of comparable seriousness. The existence of identical circumstances is not required in order to establish similarity between the Petitioner's situation and that of other employees. McDonald v. Santa Fe Trail, supra, at 2579. The touchstone is the "comparable seriousness" of the offenses.

   
   

   Thus, under the facts of this case, the evidence clearly established that Bill O'Neal's situation was of comparable seriousness to the Petitioner's. In fact, the severity of O'Neal's situation was greater than that of Petitioner. O'Neal had: (1) been issued a "final warning" of discharge; (2) been suspended in lieu of discharge when he reported to work intoxicated; (3) been permitted to return to work without presenting evidence of compliance with the condition of his layoff. Also, as compared to Petitioner, O'Neal had not been promoted during the 3 years of his employment with Respondent.

   
   

   Because Petitioner and O'Neal were similarly situated, they should have been disciplined, or not disciplined in a comparably similar fashion. Whatever punishment Respondent chose to impose, it should have been consistently applied. McDonald v. Santa Fe Trail Transp. Co., supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

4. Likewise, the Hearing Officer's Conclusion of Law in paragraph 7, page 15, is also rejected as being contrary to the findings of fact and law. As alluded to in paragraph 3, herein above, the inference of unlawful discrimination may be derived from the fact of dissimilar treatment. Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). There is no evidence of record to explain why Respondent treated two white employees (O'Neal and Ed Demers) with much greater leniency than Petitioner. In the absence of a plausible explanation, it must be inferred that the reason, or at least one of the reasons, for Petitioner's discharge was his race. Furnco, supra; Peters v. Jefferson Chemical Co., 516 F.2d 447 (5th Cir. 1975).

Petitioner thus met his burden of proving pretextuality by establishing that the two white employees with comparably similar records were retained in Respondent's employ. McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonald v. Santa Fe Trail Transp. Co.; 96 S. Ct. 2574 (1976).

This Commission has fully considered the exceptions and briefs of the parties, as well as the Findings of Fact and Conclusions of Law set forth in the Hearing Officer's Recommended Order, dated June 5, 1980, together with the record in this proceeding. For the reasons stated herein above, to the extent any Findings of Fact or Conclusions of Law of the Hearing Officer conflicts with, or is inconsistent with this Final Order, each is hereby expressly rejected and modified accordingly. All remaining Findings of Fact and Conclusions of Law ordered by the Hearing Officer are hereby adopted and approved as the findings and conclusions of this Commission. Those portions of the exceptions of the parties not incorporated in this Order are deemed to be unnecessary, irrelevant or unwarranted in law or fact, and are rejected.

Having considered all of the foregoing it is therefore, concluded that:

1. The Recommendation of the Hearing Officer is hereby rejected.

   
   

2. Respondent unlawfully discriminated against the Petitioner on account of his race by discharging him while retaining in its employ similarly situated white persons.

   
   

3. Petitioner is entitled to reinstatement to the position he held at the time of his discharge. However, the record reveals that Respondent terminated its operations at the Panama City plant where Petitioner was formerly employed and Respondent exercises no control over that operation.

   
   

4. Petitioner shall receive from Respondent back pay from August 22, 1978 to October 31, 1980, equivalent to the salary he would have been paid; such back pay to be reduced by the amount of any unemployment compensation and any other income received by Petitioner during said period and less any and all deductions as required by applicable laws.

   
   

5. Petitioner is awarded reasonable attorney's fees and costs. The Commission has examined Petitioner's attorney's affidavit and statement of work performed and finds the sum of $9500.00 to be a reasonable attorney fee for the work performed in this cause.

It is so ORDERED.

DATED this 23rd day of February, 1981.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS

BY:

MELVIN L. LEVITT, Commission Vice-Chair Commissioner Robert Billingslea Commissioner Cynthia Moore Chestnut Commissioner Elvira M. Dopico Commissioner Robert Joyce

Commissioner Thomas R. Poole, Sr.

Commissioner Marjorie M. Hart dissents.

FILED this 24th day of February, 1981, at Tallahassee, Florida.

BY:

Acting Clerk of the Commission Florida Commission on Human Relations

ENDNOTE

1/ References are to pages (p) of the Recommended Order (R.O.). References to Petitioner's and Respondent's exhibits will be designated "PE" and "RE", respectively, followed by the exhibit number. References to the transcript are designated "TR" followed by the page number.

Copies Furnished:

ALGIA COOPER, ESQ., Attorney for Petitioner cm#P33 7774597 CONSTANCE MCALLISTER, ESQ., Attorney for Respondent cm#P33

7774598

AURELIO DURANA, ESQ., Attorney for Intervenor ALL COMMISSIONERS

Docket for Case No: 79-002169

Orders for Case No: 79-002169