vs. ) CASE NO. 83-1799
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 13, 1983, at Daytona Beach, Florida.
For Petitioner: Edward I. Matz, Esquire
For Respondent: Thomas A. Garwood, Jr., Esquire
By Petition for Relief from an unlawful employment practice (UEP), Wesley Evans, Jr., Petitioner, contests his firing from the Volusia County Transit System (VOTRAN), Respondent, by the allegation that he was fired because of his race, black, in violation of the 1964 Civil Rights Act, as amended.
At the hearing Petitioner called six witnesses, Respondent called three witnesses, and eleven exhibits were offered into evidence. Objection to Exhibit 10, on grounds of hearsay, was sustained; the other exhibits were admitted into evidence. Neither party submitted proposed findings of fact.
Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift.
Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the
position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job.
Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position.
After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented.
This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office.
Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired.
VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In
Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN.
To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book."
As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated.
The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union.
The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 23.167(1)(a), Florida Statutes, provides it is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual because of such individual's race.
In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If the Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's firing. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). A prima facie case may be established by petitioner showing (1) that he belongs to a racial minority; (2) that he was qualified for the position from which fired; and (3) after his dismissal the employer replaced him in the company with one of another race.
Here, Petitioner has failed to establish a prima facie case of racial discrimination. His attempt to support the claim of discrimination on his not being issued a white uniform shirt fails because the evidence does not support a finding that he requested the issuance of a white shirt from the Superintendent and was turned down. Nor were the inquiries he made to the Union steward followed up by any action suggested by the steward to obtain a white shirt.
The only other evidence submitted tending to show racial discrimination was the testimony of another employee that he overheard the phrase "dumb niggers" used in a conversation between Davis and Fischer. Not only did both men categorically deny using such a phrase, but also this employee was dissatisfied because he had been turned down repeatedly for a promotion at VOTRAN before he left for another job.
Further, the evidence was unrebutted that VOTRAN's employment practices are nondiscriminatory, the percentage of black employees at VOTRAN exceeds the percentage of blacks in Volusia County, black and white employees at VOTRAN are treated equally and fairly, and the Union contract under which VOTRAN and its employees operate bans discrimination and provides a grievance procedure to settle claims of discrimination. In addition, this contract establishes causes for which employees may be terminated. Under the grievance procedure, Petitioner could contest his dismissal on grounds of racial discrimination and failure to show just cause; here, his claim can be based only on unlawful discrimination.
Even if the evidence could be interpreted to establish the prima facie case of discrimination, Respondent articulated a legitimate reason for Petitioner's firing. Since the factual dispute of the events leading to his dismissal has been resolved against Petitioner, his dismissal was for a valid reason.
Once the employer presents a legitimate reason for the employee's termination, the burden shifts back to the employee to show the employer's stated reason for dismissal was in fact pretext. Especially relevant to such a showing would be that white employees involved in conduct as serious as
Petitioner's conduct were nevertheless retained; facts as to Respondent's treatment of Petitioner during his term of employment; and Respondent's general policy in practice with respect to minority employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed. 2d 668 (1973). All
of these factors, when applied to the facts here involved, militate against a finding of pretext.
Part of the reason a finding of probable cause was found in this case was VOTRAN's ineptness in fitting the reasons for Petitioner's discharge into the language of the Union contract, which listed grounds for discharge for cause. Article 12-C-11, as an example of misconduct by a employee so serious as to warrant immediate dismissal, provides:
Use of abusive, threatening, offensive or obscene language toward or in the presence of a passenger, fellow employee, supervisor or other company official including radio communications.
As a result of attempting to fit Petitioner's misconduct into the above-quoted language, the emphasis went off on offensive or obscene language rather than on the threatening language used by Petitioner to Fischer that "You aren't man enough to fire me." Even though the obscene language used by Petitioner in his January 19, 1982, conference with Fischer may not have been sufficiently opprobrious to warrant his discharge in accordance with the Union contract, the forum in which that issue could be resolved is in the grievance procedures outlined in the contract and not before this tribunal. Here, the issue is not whether Petitioner was wrongfully terminated from his job, but only whether his termination was because of his race. No credible evidence was presented that Petitioner's termination was racially motivated.
From the foregoing it is concluded that Wesley Evans was terminated from his employment by VOTRAN on January 19, 1982, for just cause, and his race was not a factor in the decision to fire him. It is
RECOMMENDED that the complaint of Wesley Evans, Jr., that he was subjected to racial discrimination by Respondent be dismissed.
ENTERED this 2nd day of December, 1983, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983.
Edward I. Matz, Esquire Post Office Box 5337
Thomas A. Garwood, Jr., Esquire Post Office Box 231
Donald A. Griffin, Director Florida Commission on
325 John Knox Road, Suite 240, Bldg. F Tallahassee, Florida 32303
325 John Knox Road, Suite 240, Bldg. F Tallahassee, Florida 32303
