STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEWIS JESSE LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3974

)

EG & G FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing issued in this case on January 11, 1984, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Cocoa, Florida, on March 1, 1984. The issue for consideration was whether Petitioner was unlawfully denied employment by Respondent because of his race.

APPEARANCES

For Petitioner: Lewis Jesse Lee, pro se

909 South Carolina Avenue Rockledge, Florida 32955

For Respondent: Charles M. Rand, Esquire

Akerman, Senterfitt & Eidson Post Office Box 231

Orlando, Florida 32802 BACKGROUND INFORMATION

On or about January 13, 1983, Petitioner, Lewis Jesse Lee, filed a formal charge of discrimination with the Florida Commission on Human Relations (Commission) against Respondent, EG & G FLORIDA, INC. (EG & G), alleging that Respondent's failure to hire Petitioner as a painter was unlawful discrimination against him because he is black.

An investigation of Petitioner's complaint was made by the Commission; and on November 21, 1983, the Commission's Executive Director entered a Determination of No Cause in the case, finding no reasonable cause to believe that an unlawful employment practice had occurred. A notice of this determination was sent to the parties on November 23, 1983.

Thereafter, on December 5, 1983, Petitioner filed Petition for Relief with the Commission that further set forth his reasons for believing unlawful discrimination against him had taken place; and, on December 20, 1983, notice of the filing of this Petition was sent both to the Respondent and to the Commissioners.

The following day the Commission requested the assignment of a Hearing Officer, who, on December 27, 1983, gave the parties notice of his assignment. Respondent, by letter of January 4, 1984, requested a hearing in late February, 1984, and on January 10, 1984, submitted its formal Answer. On January 11, 1984, the Hearing Officer noticed the case for hearing.

FINDINGS OF FACT

1. Petitioner herein, LEWIS JESSE LEE, began working for Boeing Services International (BSI) on July 1, 1977, after having previously worked as a painter since 1953. While working for BSI, he was, among other duties, used both as a carpenter, and as a painter.

   
   

2. Petitioner began work as a painter with no knowledge of the requirements of his job except as a roll painter. The job at which he was to work at BSI included the use of a sandblaster and a mechanical spray gun. Petitioner admits he needed training as a sandblaster and as a spray painter, but believes he was learning quite well.

   
   

3. When Petitioner came to work with Mr. Earl Godwin in the painting department, he had a belligerent attitude because, as Petitioner expressed it, he did not want to be a painter. He had just been transferred from his employment as a carpenter.

   
   

4. When Petitioner was first hired by BSI, he was assigned work in heavy equipment for 45 days or more. Then he was loaned to the "Y-rope" section, where he worked for 60 days or so. From that job, he was moved to the "new crew" so that, as he says, a white employee who had been working at "Y-rope" and moved could, at his request, return. Petitioner was, involuntarily moved to "new crew" to accommodate this white employee.

   
   

5. It is because of this and the subsequent mismanagement of his assignments, he states, rectified only when he complained to the union and the NAACP, that created his admittedly bad attitude when he began working for Godwin. At this point, he had finally agreed, over protest, to become a painter after he was told he was inept as a carpenter; but, though he acquiesced, it bothered him so much he had to see a doctor frequently.

   
   

6. When Respondent took over the contract from BSI in December, 1982,

   `among the changes which took place was a reduction in the number of painters from 28, as hired by BSI, to 20, to be hired by Respondent. Arnold Francisco, BSI's supervisor of, both carpentry and painting, was given, the responsibility to select those former BSI painters to be hired by Respondent. Since two of the

   20 to be hired were to be sign painters, a separate specialty, only 18 openings remained for, regular painters. Of the 28 former BSI employees he screened, four were black. The only one of the four black former BSI employees he did not recommend for employment with Respondent was Petitioner, and seven of the former BSI employees who were not recommended for employment were white. Some of these white former BSI employees who Francisco did not recommend for hiring were better qualified than Petitioner.

   
   

7. Mr. Francisco made his recommendations on the basis of his prior observation of all the candidates while they were employees of BSI. Seniority was not a factor since the union contract did not require that it be one. In short, Petitioner was not hired because there were 20 painters (of, whom two were sign painters) who were better qualified than Petitioner.

8. This analysis is supported by Petitioner's immediate supervisor, Mr. Godwin who evaluated Petitioner's job performance at BSI as average. As was stated previously, when Petitioner first came to work under Godwin's supervision, he had no knowledge of the spray, painting operation and had to be trained. Because of Petitioner's bad attitude, this took six months. When Petitioner finally reached the point where he could work alone, his supervisors nonetheless did not feel comfortable with allowing him to do that

   
   

9. Mr. Godwin indicated he devoted more time to trying to teach and help Petitioner than any other individual he has had work under him in 30 years. Since he, Mr. Godwin, is a Southerner, he felt that perhaps he did not come across to Petitioner the right way, that Petitioner might have felt uncomfortable with him. As a result, Godwin asked a third party, another supervisor (Mr. Moore), to talk with Petitioner and assure him there was no problem between them because of race. After that discussion, Petitioner's attitude improved, but his performance was still a problem.

   
   

10. According to Mr. Godwin, who normally left the immediate supervision of the painters to the lead painter on a particular crew, Petitioner was a challenge. As a result, Godwin personally devoted more time to trying to teach Petitioner than he did to the others. He also carefully checked Petitioner's work and found he had to have Petitioner reaccomplish many jobs--more so than the other painters--and he often had to have other painters finish Petitioner's work.

    
    

11. Godwin also found Petitioner could not adapt to the "finer art" of maintaining the spray equipment, keeping it working, or getting it to work properly. He seemed to have a problem understanding how the equipment worked.

    
    

12. It is significant to note, however, that notwithstanding his close supervision of Petitioner, Godwin was not asked for, nor did he give, an opinion on whether Petitioner should be hired by Respondent or not. His opinion was sought as to others and he gave it, based solely on the candidates ability to do the work. However, he made no recommendation, pro or con, on the hiring of the Petitioner though, under the employment conditions that existed at the time, he would not have hired Petitioner had he been given a choice.

    
    

13. Petitioner contends that others, less qualified than he were hired in preference to him and cites as examples, Messrs. Russ, Hallen, Brown, and Greer. According to Godwin, Hallen and Greer did not work in Petitioner's area and, though both were young and inexperienced, he had none of the complaints with their work that he had with that of Petitioner. As, for Hallen, Russ, and Brown, they all had experience both in the field and in the yard, and in both sandblasting and spray painting, and their work product was better than Petitioner's. Mr. Francisco confirms that Russ was hired on the basis of his potential as both a sandblaster and a spray painter.

    
    

14. When Respondent became the major consolidated maintenance contractor at the Kennedy Space Center and Petitioner, who had not been hired, began his series of complaints, Mr. Noble A. Wofford, then Respondent's EEO administrator, was directed to review Petitioner's case to insure there was no racial discrimination involved. He conducted a thorough investigation of all eight nonhirings during which investigation he found that, while Petitioner was well- liked, he had had difficulty learning the job and his performance was not good. Petitioner was transferred from the carpentry shop to the paint shop because, in the opinion of his supervisors, he could not properly do the work.

15. Mr. Wofford indicated that in his review of petitioner's application for employment, there were several discrepancies which were, however, neither singularly nor taken together, significant and which played no part in the decision not to hire him. The review of the Petitioner's total work picture shows:

    
    

    1. He had attendance problems due to his health and was frequently unavailable for work. (Petitioner, explains this as being due to the severe frustration he felt on being transferred from job to job.)

       
       

    2. Petitioner did not possess the technical skills necessary for the painting work to be done and could not seem to understand the technical aspects of the job, such as the properties of different paints, etc.

       
       

    3. Petitioner had poor mechanical ability and had trouble dismantling, the spray equipment for cleaning.

       
       

       Based on the above review, Mr. Wofford concluded there was no racial discrimination involved in the decision by Respondent not to hire Petitioner. The decision was made solely on his skill level, his ability level, and his performance, or, conversely, the lack of acceptable levels of all three.

       
       

16. Petitioner contends that he was only on the job, as a painter for six months and cannot be expected to be better qualified because of that. He also contends, however, that the decision by Respondent to not hire him because of his lack of performance and experience is unjustified because he subsequently founded his own painting firm and is doing well at it.

    
    

17. On balance, it is clear the decision made by Respondent not to hire Petitioner was correct one and was based on valid and nondiscriminatory grounds.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division ,of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. Section 760.10(1)(a), Florida Statutes (1983) [formerly Section 23.167(1)(a), Florida Statutes (1981)], provides that it is an unlawful employment practice for an employer to fail or refuse to "hire any individual because of such individual's race.

    
    

20. In employment discrimination cases, where an individual alleges he was subject to disparate treatment because of his race, he has the initial burden of establishing a prima facie case of discrimination, by a preponderance of the evidence. If the complainant succeeds in proving a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the prospective employee's rejection. Texas Dept. of Commonwealth Affairs v. Burdine, 101 S. Ct. 1089 (1981).

    
    

21. An employer, however, has the discretion to choose among equally qualified candidates, provided that the decision is not based on unlawful criteria. Burdine, 101 S. Ct. at 1097.

    
    

22. Here Petitioner has failed to establish any unlawful discrimination. The record fails to show that Respondent's decision not to hire Petitioner was based on his race. To the contrary, it shows that three of four black painters

were hired by Respondent and that Respondent's decision not to hire Petitioner was based on the evidence of his not being a qualified candidate. There is ample evidence to show this decision was correct. Accordingly, it is concluded that Petitioner was not rejected for employment because of his race, but on the substantial evidence that his qualifications for one of the reduced number of jobs were far inferior to those of the individuals chosen, and that his complaint should fail.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED THAT the Petition of LEWIS JESSE LEE be DENIED.

RECOMMENDED this 30th day of March, 1984, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 30th day of March, 1984.

COPIES FURNISHED:

Mr. Lewis Jesse Lee

909 South Carolina Avenue Rockledge, ,Florida 32955

Charles M. Rand, Esquire Akerman, Senterfitt & Eidson Post Office Box 231

Orlando, Florida 32802

Donald A. Griffin, Executive Director

Florida Commission on Human Relations

325 John Knox Road, Suite 240, Bldg. F Tallahassee, Florida 32303

Docket for Case No: 83-003974

Orders for Case No: 83-003974