Judges: R. T. CARPENTER
Agency: Commissions
Latest Update: Nov. 15, 1990
Summary: Petitioner has failed to show discrimination on account of sex or marital status.
83-0467.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHAELINA J. CHIVERS, )
)
Petitioner, )
and )
) EXECUTIVE DIRECTOR, FLORIDA ) COMMISSION ON HUMAN RELATIONS, )
)
vs. ) CASE NO. 83-467
)
DRIVER PERSONNEL COMPANY, )
DIVISION OF WESTINGHOUSE )
ELECTRIC CORPORATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing on August 17, 1983, in Orlando, Florida, and October 18, 1983, in Sanford, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: Ransford C. Pyle, Esquire
621 East Washington Street, Suite 7
Orlando, Florida 32801
For Respondent: Barnett Q. Brooks, Esquire
Westinghouse Building, Gateway Center Pittsburg, Pennsylvania 15222
No Appearance for Intervenor.
This matter arose on the complaint of Petitioner alleging that she was discriminated against by her employer, Driver Personnel Company (DPC), on the basis of her sex and marital status. DPC discharged Petitioner from her job as a tractor-trailer driver on November 17, 1981, giving rise to these allegations.
Following failure of conciliation, Intervenor referred this matter to the Division of Administrative Hearings for further proceedings. Subsequent to final hearing, the parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
During the hearing portion of these proceedings, Respondent filed a motion for summary judgment. This motion was denied as improper under Chapter 120, Florida Statutes, since the Hearing Officer is not empowered to enter judgments. Thereafter, a motion to dismiss was argued and denied. Subsequent to hearing, Respondent filed a further motion to dismiss, which Petitioner moves to strike
as untimely. Respondent's post-hearing motion to dismiss is indeed untimely, and raises no issue which was not argued or appropriately raised at the conclusion of Petitioner's evidentiary case. Respondent's further motion to dismiss is therefore denied.
FINDINGS OF FACT
Petitioner applied to Respondent for employment approximately September 1, 1981, and was hired on October 7, 1981, effective October 11, 1981. Hire dates were set by Respondent based upon the first day of work. Petitioner was terminated simultaneously with her husband on November 17, 1981.
Larry G. Chivers, Petitioner's husband, was hired by Respondent on September 7, 1981, as a tractor--trailer driver, sharing driving with several other drivers until October 11, 1983. Thereafter, until he was terminated, he drove exclusively with Petitioner. Respondent claimed Mr. Chivers was initially hired as a "casual" driver and did not go on permanent status until his wife was hired. While his work did not change, with the exception of his new partner, his status with the company changed significantly since casual drivers accrued no seniority nor did the alleged 30 work day probationary period begin to run. Since Petitioner and her husband were fired a few hours after completing their work on their thirtieth day of work together and since probationary employees were given no recourse when fired, Mr. Chivers' status was important to him in any challenge to his discharge.
The evidence was conflicting as to whether the Chivers were ever informed of their probationary status or if such status was intended by their employer. However, regardless of status at the time of firing, Respondent could not have lawfully discharged Petitioner because of her sex or marital status. See Subsection 23.167(1)(a), Florida Statutes (1981).
The Chivers reported directly to Mr. Dennis O'Neal, Supervisor of Terminal Operations, Caribbean Air Express (CAX) a division of Westinghouse located at Sanford, Florida. O'Neal was responsible for driving assignments for CAX, which obtained its drivers from Respondent. Although O'Neal had no authority to hire or fire drivers, he made recommendations directly to Mr. Robert Adair, Manager of Personnel Relations for Respondent, who had such authority. On November 16 or 17, 1981, O'Neal recommended to Adair that the Chivers be fired and Adair instructed O'Neal to terminate them.
Petitioner was the only female driver ever hired by Respondent and her hiring presented special problems. Although it was assumed that she would drive with her husband on a team basis, company policy required that she drive with any available driver in the event her husband was not available. Petitioner, her husband, Adair and O'Neal acknowledged that some drivers had indicated they would refuse to drive with a woman. Such refusal to drive was grounds for discharge under company policy and Respondent so advised at least one driver who raised this issue.
Respondent urges a finding that Petitioner was guilty of "unsatisfactory performance" and was fired for that reason. See Petitioner's proposed findings numbered 14, 15, 16, 17, 18 and 19. Although the evidence establishes that the Chivers were unable to report their precise location on one trip during a scheduled call-in, and that on several trips they made excessive stops, their overall job performance met company standards. Their trip times were somewhat below the company average, but were not the slowest. There were no allegations against them of misconduct, unsafe practices or mishandling of
company equipment or cargo. Therefore, "unsatisfactory performance" as a proffered basis for discharge is rejected.
Respondent's primary grounds for discharging the Chivers involved their attitude. This reason was given to them at the time of firing along with the unsatisfactory performance assertion. Specifically, they were told that they did not have a "Westinghouse attitude."
The Chivers made frequent complaints about the condition of their equipment to their supervisor, Dennis O'Neal. Although these complaints and "write-ups" had at least some validity, O'Neal resented their frequency.
On their last trip from Sanford, Florida, to Irwin, Pennsylvania, where Robert Adair was located, the Chivers called on Adair to voice a number of grievances. Mr. Chivers did most of the talking, but Petitioner was present and indicated by her participation that she agreed with the complaints her husband presented.
The Chivers complained that other teams were getting the longer, better paying routes and that the dispatcher was not following a first-in, first-out policy. They also accused another team which they met on the highway of being off-route and speeding.
The Chivers further complained about their employing company and its practices to other drivers, dock workers, dispatchers and customers. In one case a dock foreman, Mr. Rick Scheaffer, asked O'Neal to keep Petitioner off his dock because of her griping.
Petitioner contends that most of the complaining which her employer found unacceptable originated with her husband, and that his complaints were unfairly attributed to her. This argument must be rejected since Petitioner was present at virtually all times when her husbands complained to Adair or O'Neal. These supervisors reasonably understood all complaints to be hers as well as those of her husband by her participation and assent.
The parties sought to develop evidence on the basis which drivers were hired and fired. Since Petitioner was the only female driver ever hired by the company (which is now out of business) the relevance of company practices is somewhat limited. Although the company tried to hire drivers as teams whenever possible, it did not fire them together unless both team members were guilty of the same misconduct or both were unacceptable workers.
Respondent hired Petitioner in the face of opposition from its then exclusively male driving pool. Their concerns involved possible domestic relation problems which could arise if a married male driver was dispatched on an out of state trip with Petitioner. Respondent's refusal to give in to such pressure is inconsistent with Petitioner's claim that a month and a half later she was fired because of her sex and marital status.
CONCLUSIONS OF LAW
Section 23.167, Florida Statutes (1981), provides in part:
It is an unlawful employment practice for an employer:
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.
Petitioner contends that Respondent committed an unlawful employment practice under the above provisions by discharging her because of her sex and/or marital status. However, Petitioner presented no evidence from which it can be concluded or reasonably inferred that she was subject to unlawful discrimination.
Conversely, Respondent established that both petitioner and her husband were regarded as chronic complainers and troublemakers by their supervisors. Although such conclusions by these supervisors may well have been incorrect and an improper basis for discharge under other standards of review, they did not amount to an unlawful employment practice or discrimination which is at issue here.
RECOMMENDATION
From the foregoing, it is
RECOMMENDED that the Human Relations Commission issue a Final Order dismissing petitioner's complaint.
DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida.
COPIES FURNISHED:
Ransford C. Pyle, Esquire 621 East Washington Street Suite 7
Orlando, Florida 32801
Barnett Q. Brooks, Esquire Westinghouse Building Gateway Center
Pittsburg, Pennsylvania 15222
T. CARPENTER Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984.
Dana Baird, Esquire Florida Commission
on Human Relations
2562 Executive Center Circle Suite 100, Montgomery Building Tallahassee, Florida 32301
Donald A. Griffin, Executive Director
Human Relations Commission Carlton Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS
MICHAELINA J. CHIVERS,
Petitioner,
and |
|
| DOAH CASE NO. | 83-0467 |
EXECUTIVE DIRECTOR, FLORIDA | FCHR CASE NO. | 82-0360 |
COMMISSION ON HUMAN RELATIONS | FCHR ORDER NO. | 84-0004 |
Intervenor,
vs.
DRIVER PERSONNEL COMPANY, A DIVISION OF WESTINGHOUSE ELECTRIC CORP.,
Respondent.
/
ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE AND COMPLAINT OF DISCRIMINATION
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Reese Marshall, Panel Chairperson;
Commissioner John J. Sulik; and Commissioner Thomas H. Poole, Sr.
Appearances For Petitioner Michaelina J. Chivers:
Ransford C. Pyle, Esquire 621 E. Washington Street Suite 4
Orlando, Florida 32801
For Respondent Driver Personnel Company: Barnett Q. Brooks, Esquire Westinghouse Electric Defense
920 Elkridge Landing Road Mail Stop 4635
Baltimore, Maryland 21203
No Appearance was entered at the hearing on behalf of Intervenor.
Preliminary Matters
Michaelina J. Chivers, Petitioner herein, filed a Complaint of Discrimination with this Commission pursuant to the Human Rights Act of 1977, alleging that Driver Personnel Company, A Division of Westinghouse Electric Corp., Respondent herein, unlawfully discriminated against Petitioner on the basis of her sex and/or her marital status, by discharging her from its employ.
In accordance with the Commission's rules, the allegations of discrimination set forth in the Complaint of Discrimination were investigated and a report of said investigation was submitted to the Executive Director. On December 2, 1982, the Executive Director issued his Determination finding reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977. Efforts to conciliate the dispute were unsuccessful and on February 7, 1983, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice.
The petition was referred to the Division of Administrative Hearings for the conduct of a formal proceeding pursuant to Florida Administrative Code Rule 22T-8.16(1). The formal proceeding was held on August 17, 1983, and October 18, 1983, in Sanford, Florida, before R.T. Carpenter, Division of Administrative Hearings Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on January 31, 1984.
Petitioner filed exceptions to the Recommended Order. Respondent did not file a Response to said Exceptions.
Pursuant to notice, oral argument was held on March 16, 1984, in Jacksonville, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation of this matter and determined the action to be taken upon the petition.
Rulings on Exceptions
In her Exceptions, Petitioner requests this Panel to reverse certain Findings of Fact made by the Hearing Officer, most notably those findings which support the ultimate finding that Petitioner and her husband were discharged for poor attitude.
Having considered the record of the proceeding, we find there is competent substantial evidence to support the Hearing Officer's ultimate finding that Petitioner and her husband were discharged for poor attitude and, therefore, this Panel rejects these exceptions.
Petitioner also excepts to Findings of Fact, Paragraphs 13 and 14. While we do not find reversible error in the Hearing Officer's ultimate finding, we do not adopt the following portions of his analysis:
...Since Petitioner was the only female driver ever hired by the company (which
is now out of business) the relevance
of company practices is somewhat limited.
Respondent hired Petitioner in the face of opposition from its then exclus ively male driving pool. Respondent's
refusal to give in to such pressure is inconsistent with Petitioner's claim that
a month and half later she was fired because of her sex and marital status.
With respect to Paragraph 13, we believe that company practices are relevant in an action, such as the instant one, in which Petitioner alleges disparate treatment. As explained in Schlei and Grossman, Employment Discrimination Law 13 (2d ed. 1983), the theory of disparate treatment is as follows:
In Teamsters v. United States, the Supreme Court stated that conceptually the theory of
"'[d]isparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [Citation omitted.] Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.
The essence of disparate treatment is different treatment: that blacks are treated differently than whites, women differently than men. It does not matter whether the treatment is better or worse, only that it is different. A classic example is segregated facilities. Similarly, it is essential to realize that it does not matter whether the employee is a good or bad employee or whether the employer is fair or unfair. For example, a violation of Title VII would be proved under the disparate treatment theory by evidence that a female plaintiff was discharged for four unexcused absences in accordance with a company rule that all persons with four unexcused absences are discharged, but similarly situated male employees were not discharged after four unexcused
absences. However, if similarly situated male employees were also discharged in such circumstances, there would be no violation of Title VII. In both situations, it is irrelevant whether the plaintiff was a bad employee or a good employee. General conceptions of whether or not it is fair to discharge someone for four unexcused absences are similarly not determinative.
431 U.S. 324, 335-36 n. 15, 14 FEP 1514, 1519 (1977), reproduced in Chapter 3 (Seniority). See e.g., Morita v. Southern Cal. Permanente Medical Group, 541 F.2d 217, 219, 13 FEP 505, 506-07 (9th Cir. 1976), cert. denied, 429 U.S. 1050
(1977)(failure to offer training to a minority employee to enable him to receive promotion, absent a showing that white employees were offered such training, not unlawful).
Accordingly, it is relevant to determine how Respondent treated its male tractor-trailer drivers in determining whether Petitioner was treated differently than such drivers.
With respect to Paragraph 14, the Hearing Officer found that there was opposition from male drivers to drive with Petitioner and that Respondent's refusal to give in to such pressure was inconsistent with Petitioner's claim that she was fired because of her sex and marital status. The record, however, reflects that Petitioner drove exclusively as a team with her husband during her employ. Inasmuch as Petitioner was never assigned to work with any other drivers the Hearing Officer had an insufficient factual predicate in which to base his conclusion that Petitioner's claim of discriminatory discharge was inconsistent with her being hired despite opposition. 1/
Notwithstanding our disagreement with the Hearing Officer's analysis regarding the above-cited Paragraphs 13 and 14, we do not find, based on the evidence of record, that Petitioner was treated differently than male drivers or that Petitioner was discharged because she was a female or married.
Findings and Conclusions
Having considered the Recommended Order and Exceptions thereto, and being particularly mindful of the record in this proceeding, the Panel finds that the Hearing Officer's Findings of Fact, as modified in the preceding section, are supported by competent substantial evidence and that the Hearing Officer's Conclusions of law, based upon such findings, are correct application of law.
It is therefore,
ORDERED that the Hearing Officer's Findings of Fact as modified in the preceding section, are adopted, the Hearing Officer's Conclusions of law are adopted, and the Hearing Officer's recommendation is adopted.
Accordingly, the Petition for Relief from an Unlawful Employment Practice and the Complaint of Discrimination are hereby DISMISSED with prejudice.
Petitioner is advised of her right to petition the Florida District Court of Appeal for review of this Order within thirty (30) days of the date that this Order is filed with the Clerk of the Commission. 120.68, Fla. Stat. (1981); Fla. R. App. P. 9.110(b).
It is so ORDERED.
DATED this 11th day of May, 1984
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Reese Marshall, Panel Chairperson; Commissioner John J. Sulik; and
Commissioner Thomas H. Poole, Sr. FILED this 7th day of June, 1984, in Tallahassee, Florida.
BY:
Suzanne Oltman
Clerk of the Commission
ENDNOTE
1/ Petitioner's basic contention was chat Respondent chose to terminate her rather than to assign her to work with another driver when Respondent no longer wanted to retain the services of her husband.
COPIES FURNISHED:
Ransford C. Pyle, Attorney for Petitioner (C.M. #P353071809). Barnett Q. Brooks, Attorney for Respondent (C.M. #P353071810). Dana Baird, Attorney for Intervenor Executive Director.
Aurelio Durana, Legal Advisor for Commission Panel. The Honorable R. T. Carpenter, DOAH Hearing Officer.
Docket for Case No: 83-000467
Orders for Case No: 83-000467
