STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM K. KERLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1820

)

THE SOUTHLAND CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on September 8, 1983, in Orlando, Florida. The following appearances were entered: Harry L. Lamb, Orlando, Florida, appeared on behalf of the Petitioner, William K. Kerlin; E. John Dinkel, Tampa, Florida, appeared on behalf of the Respondent, The Southland Corporation.

On or about April 15, 1982, the Petitioner filed a complaint with the Florida Commission on Human Relations charging that the Respondent had committed an unlawful employment practice by discharging Petitioner on account of his sex. The Commission investigated the complaint, and by notice dated March 31, 1983, found reasonable cause to believe that an unlawful employment practice had occurred. Efforts at conciliation failed, and Petitioner filed a Petition for Relief with the Commission on or about June 3, 1983, The matter was filed with the Division of Administrative Hearings on June 9, 1983. The final hearing was scheduled to be conducted as set out above by notice dated June 21.

At the final hearing, the parties stipulated that the allegations set out in Paragraphs 2, 3, 4, 5, 6, 10, 15, and 16 of the Petition for Relief could be accepted as true without the need for any further proof. Petitioner testified as a witness on his own behalf. Respondent called the following witnesses: James A. Larrabee, Respondent's Personnel and Administration Manager; Enzi L. Schiavoni, a supervisor employed by the Respondent; Julius Dix, the Respondent's Assistant Warehouse Manager; Jerry Lewis Pavlovsky, a warehouse section manager employed by the Respondent; Dean Moore, a warehouse section manager employed by Respondent; and Delores Moore, the Respondent's Assistant Personnel Manager.

Joint Exhibits 1 and 2, Petitioner's Exhibits 1 through 6, and Respondent's Exhibits 1 through 8 were offered into evidence and received.

The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issues to be resolved in this proceeding are whether the Respondent committed an unlawful employment practice by discharging the Petitioner from his position with the Respondent. Petitioner contends that he was discharged on account of his sex. Respondent contends that Petitioner was discharged on account of a severe attendance problem. Petitioner contends that female employees with similar or worse attendance problems were not terminated.

FINDINGS OF FACT

1. The Respondent is a corporation which does business in the State of Florida. The Respondent is a distribution warehouse for Seven-Eleven Stores. The Respondent is an employer within the meaning of the Florida Human Rights Act of 1977. Petitioner is a male citizen of the United States. He was employed in various capacities by the Respondent from January, 1974, until he was discharged on November 24, 1981. At the time of his discharge, he was employed as a receiving clerk in one of the Respondent's warehouse facilities.

   
   

2. Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations concerning his discharge in a timely manner. A determination of reasonable cause was issued by the Commission, effort at conciliation failed, and Petitioner filed his Petition for Relief in a timely manner.

   
   

3. From late in 1978 until the time that Petitioner was discharged, all of the Petitioner's supervisors at the Respondent experienced difficulties with Petitioner due to a poor attendance record. At the time, the Respondent followed a four-step disciplinary procedure. Step 1 was employee counseling. Step 2 involved issuance of what was called a "pink slip," or unsatisfactory employee report. At Step 3, a final letter of warning would be issued. Step 4 was discharge.

   
   

4. The first formal record that Respondent entered Step 1 of the disciplinary procedure was an employee counseling record issued October 31, 1978. It was therein noted that Respondent had failed to call in prior to an absence from his work shift. The second employee counseling record was issued April 4, 1978. The Petitioner's supervisor discussed repeated tardiness and absences with him on that occasion. Additional counseling records were issued April 11, 1979, and April 30, 1979, and raised the same problems. While these were apparently the only formal records of employee counseling, the Petitioner had been counseled on numerous other occasions regarding excessive tardiness and absenteeism. Respondent entered Step 2 of the disciplinary procedure on November 28, 1979, when a "pink slip," or unsatisfactory performance report, was issued. It was therein noted that the Respondent had been counseled about excessive absenteeism and that his performance had not improved. Petitioner's record did not improve, and on March 19, 1980, a warning letter was issued, thus placing Petitioner in the third step of the disciplinary process. The Petitioner's record regarding excessive tardiness and absenteeism was set out in the warning letter, and it was stated that if Petitioner did not improve, it could lead to termination of his employment.

5. Despite issuance of the warning letter, Petitioner's performance did not improve. He continued to be frequently absent or tardy. A second warning letter was issued January 28, 1981. It was therein stated:

   
   

   As indicated to you on your performance review January 14, 1981, you have shown little or no improvement in your attendance since the warning letter of March 19, 1980. Since several months have passed without action, you are being given this letter to serve as formal notice that you remain at the third step of our disciplinary policy. If immediate improvement in [sic] not shown it could lead to termination of your employment.

   
   

   Despite the second warning letter and continuing efforts by Respondent's supervisor to counsel Petitioner, Petitioner's record of excessive absenteeism and tardiness continued. On November 24, 1981, his employment was terminated.

   
   

6. At the time of Petitioner's termination, the Respondent did not have an established policy regarding how many times an employee could be late or absent without being subjected to various stages of the Respondent's disciplinary process. The Respondent did, however, have good grounds for counseling, reprimanding, warning, and ultimately terminating Petitioner. The Respondent's supervisors were lenient with Petitioner. He was counseled continuously and warned twice, once more than usual, before he was terminated.

   
   

7. Petitioner alleged that three specific female employees of the Respondent had absentee problems as severe or more severe than Petitioner's, but were not terminated. The evidence does not support this allegation. Each of the three female employees, Theresa Roberts, Lisa Watt, and Gloria Sanders, had attendance problems. Each was subjected to disciplinary action by the Respondent. Sanders had received a Step 3 warning in October, 1981. Roberts had received a Step 2 unsatisfactory performance report in November, 1981. Watt had been counseled respecting her problem. None of these three female employees had attendance problems as severe as Petitioner's. Furthermore, each showed some improvement following counseling, unsatisfactory performance reports, or warnings. Nothing in the treatment of these three women vis-a-vis the Respondent's treatment of Petitioner demonstrates any sex-based bias, or discriminatory action, on the part of Respondent.

   
   

8. The Respondent now has a set policy that includes a point system regarding discipline based upon excessive absences. The policy was not in effect when Petitioner was terminated. Some people with absentee problems less severe than Petitioner's were terminated for excessive absences during the years 1977 through 1981. Other employees with attendance problems more severe than Petitioner's were not terminated. It does not appear that this disparity had any basis other than the fact that Respondent had no set policy regarding excessive absences and dealt with the issue through its individual supervisors subjectively on a case-by-case basis. In 1981, the Respondent had approximately

   170 laborers or unskilled workers in its warehouse. Forty-four of them were females. During the period 1977 through 1981, 20 employees at the warehouse were terminated for excessive absences or tardinesses. Thirteen of them were male, and seven were female. Five of the seven women who were terminated had fewer absences or tardinesses than Petitioner after receipt of the Step 3 warning. Neither these statistics nor any specific evidence regarding

   disciplinary action taken by Respondent demonstrates any sex-based bias or discrimination.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding.

   
   

10. Florida Statutes Section 23.167(1) provides that it is an unlawful employment practice for an employer to discharge any individual because of the individual's sex. Petitioner bears the initial burden of establishing at least a prima facie case of sex discrimination. See, e.g., McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Petitioner has failed to establish that his discharge by the Respondent was based upon sex. The evidence establishes that Petitioner was discharged for excessive tardiness and absenteeism. The evidence does not establish that sex was any factor in the Respondent's disciplining of its employees for excessive absenteeism or tardiness.

RECOMMENDED ORDER

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

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order finding The Southland Corporation not guilty of the unlawful employment practice alleged by William K. Kerlin and dismissing the Petition for Relief.

RECOMMENDED this 28th day of October, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 28th day of October, 1983.

COPIES FURNISHED:

Harry L. Lamb, Jr., Esquire Post Office Box 7085-A Orlando, Florida 32854

E. John Dinkel, III, Esquire Post Office Box 1531

Tampa, Florida 33601

Jean Owen, Esquire Florida Commission on

Human Relations Woodcrest Office Center

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Mr. Richard E. Williams Executive Director Florida Commission on

Human Relations Woodcrest Office Center

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Docket for Case No: 83-001820

Orders for Case No: 83-001820