vs. ) CASE NO. 84-1926
Respondent. )
On May 25, 1984, the petition of Eddie Roy Godwin for relief from an unlawful employment practice was transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations, requesting that this matter be assigned to a hearing officer to conduct a hearing and submit a recommended order. Pursuant to notice, a final hearing in this matter was held in St. Petersburg, Florida on November 2, 1984.
For Petitioner: Douglas A. Mulligan, Esquire
WILLIAMS and MILTON, P.A.
St. Petersburg, Florida 33733
For Respondent: Robert D. McIntosh, Esquire
Ft. Lauderdale, Florida 33338
At the conclusion of the hearing, the parties were allowed until November 19, 1984, to submit proposed findings of fact and conclusions of law and a memorandum on the admissibility of a polygraph test, Respondent's Exhibit #3, and testimony related thereto. Each party filed memoranda on these subjects.
Procedural background: By order dated July 10, 1984, notice of hearing was sent to all parties for a hearing on August 22, 1984. That hearing date was continued and rescheduled to September 11, 1984. On September 11, 1984, counsel for Petitioner moved for a continuance because he had failed to calendar the hearing and was thus not prepared. A continuance was granted upon the condition that Petitioner and counsel pay to Respondent its expenses and reasonable attorney's fees for attending the September 11, 1984, hearing. An order was subsequently entered setting the amount of expenses and attorney's fees.
The Petitioner was employed as a store manager at Respondent's Majik Market Store Number 40105, Pinellas County, Florida. He had previously been a convenience store manager for 14 years, and was employed by the Respondent from December 1980 until he was terminated on August 23, 1984.
The Petitioner is Black. In the relevant months prior to his termination, he was assigned to the late evening shift, 11:00 p.m. to 7:00 a.m.
Ken Hinton was assigned to the 3-11 p.m. shift, and is White. Helen Lee was working the 7:00 a.m. to 3:00 p.m. shift. She is White and had worked at this store for many years. Other persons worked the three shifts on a temporary basis when one of the three regular employees had a day off.
Each of the above persons, including the Petitioner, was responsible for sales of merchandise from the store, which included accounting for cash received and inventory, and protection of merchandise from theft.
In the summer of 1982, the Majik Market store number 40105 experienced a loss of inventory at the end of several months of more than $1,000 in each month. These shortages were noted in normal monthly audits.
Respondent requires employees to submit to a polygraph test prior to employment and when inventory shortages in a month at a single store exceed
$1,000. Pursuant to that policy, all three employees of store number 40105 were asked to take a polygraph test administered by Respondent's security manager, Boyd Brown. Part-time employees were not asked to take the test.
Petitioner, Helen Lee, and Ken Hinton, all were given a polygraph test. In the opinion of Mr. Boyd who administered the test, Petitioner did not answer truthfully when asked if he knew about or caused the inventory shortages. The relevant questions asked were "Did you steal money or merchandise" from the Respondent' s store.
Mr. Boyd graduated from a polygraph school in Atlanta in 1972, has been licensed to administer polygraph examinations since 1974, and has worked in that field since that time. He has worked for Respondent since 1982.
In Mr. Boyd's opinion, Helen Lee and Ken Hinton answered the same relevant questions truthfully.
Petitioner was first notified that he was terminated by his area superviser, Richard Kenyon, who is the Group Supervisor of Majik Market stores for Pinellas County.
Mr. Kenyon said he told Petitioner he was fired due to continuous inventory shortages. Petitioner testified that he was not told why he was being terminated when he met with Mr. Kenyon, but admitted that he was told that "security wouldn't allow me to work." It is apparent that Mr. Kenyon did not explain in detail why he was terminating Petitioner, and did not specifically mention failure of the polygraph as a reason.
Several days later, Petitioner received a written separation notice, Petitioner's Exhibit 2, which mentioned only a "drastic" reduction in shift sales compared to other employees.
On August 20, 1982, Mr. Kenyon signed an "employee separation form," Petitioner's Exhibit 3, which listed "low shift sales inventory shortages" and
"shift sales drastically reduced with this employee" as circumstances surrounding the termination. Mr. Kenyon said he prepared both Petitioner's Exhibit 2 and 3 at about the same time. It does not appear that Petitioner's Exhibit 3 was shown to or given to Petitioner.
In neither separation form did the Respondent mention the failed polygraph examination.
The Florida Commission on Human Relations, in the process of its investigation, sought from the Respondent all the reasons for termination of Petitioner. Petitioner's Exhibits 5 through 8 contained correspondence with Jack B. Lightfoot, Director, Employee Relations, for the Respondent.
Respondent's correspondence with the Commission on Human Relations does not at any point rely upon a failed polygraph examination as the reason for terminating petitioner. Paragraph 6 of a letter to Commission Representative Robert Jones states that "Polygraph not pertinent to case and results are never released without full releases because of state licensing law and Privacy Act."
At the hearing on November 2, 1984, Richard Kenyon testified that it was very difficult to accurately determine why inventory shortages occur or to pinpoint responsibility. One method used is to compare shift sales to see if any particular shift is experiencing unusually low sales. Use of the polygraph test is another means. Respondent claimed to have used both methods with regard to the inventory shortages at Store Number 40105 in the summer of 1982.
Mr. Kenyon testified that the late evening shift, 11:00 p.m. to 7:00 a.m., which was Petitioner's shift, was more prone to having inventory shortages, and afforded more opportunity to steal.
Mr. Kenyon testified that he considered shift sales, store paperwork, the longevity of Helen Lee, the auditor's findings of inventory shortages, and the results of the security interview (polygraph) in determining whether to terminate the Petitioner.
Mr. Kenyon further testified that he was most influenced by the fact that petitioner had failed the polygraph test as the basis for terminating him. Mr. Kenyon stated that he had never kept an employee who failed the polygraph test.
Respondent's Exhibits 1 and 2 are summaries of the terminations of employees from Store Number 40105 from January 10, 1980 through at least August 20, 1983. Of the thirty-five (35) persons on this summary who are identified by race, two (2) were Black. This exhibit further shows that a large number of persons who were not of the Black race were terminated for reasons similar to those given for termination of Petitioner. The other Black person terminated at this store was Joe Stephens, who was the person who replaced Petitioner when he was terminated in August, 1982. Mr. Stephens was terminated on January 19, 1983. All of the persons listed on Respondent's exhibit 1 who have a circle around the coded reason for termination were terminated for inventory control related reasons, and all of these were White.
Respondent's attempts to show that Petitioner's shift sales were significantly lower than other sales persons were not persuasive. Mr. Kenyon referred to Petitioner's Exhibit 4, which sets forth all shift sales at Store Number 40105 for the weeks of July 29, 1982 through October 14, 1982. He pointed to the fact that Petitioner sold only $74.75 on Friday, July 23, 1982,
and then sold $186.60 the next night, while Helen Lee on the afternoon shift sold $173.99 and $270.49 for the same Friday and Saturday, respectively. But Mr. Kenyon admitted that Petitioner's late night shift was "notoriously low" in sales due to the lack of customers, and that Ms. Lee's day shift was the most productive. Further, comparison of Petitioner's Friday evening sales with the sales of other persons covering that shift after he was terminated shows their sales to be essentially the same. Similarly, sales for all persons, including Petitioner, were proportionately greater on Saturday nights. Petitioner's Saturday night sales, however, were not significantly less than the sales of other persons for the same shift. Mr. Kenyon's claim that Petitioner's sales were "drastically reduced" has no basis in fact, and indicates that Mr. Kenyon did not in fact closely analyze the sales figures with respect to Petitioner.
Mr. Brown, who administered the polygraph test, disclosed the results of the tests of all three shift employees at Store Number 40105 to Mr. Kenyon. Although he did not inform the Petitioner explicitly, Mr. Kenyon did rely upon the results of the polygraph test in making his decision to terminate the employment of the Petitioner, and did inform the Petitioner that "security" had advised not to employ Petitioner any longer. There was no evidence that the polygraph test was administered or graded differently with respect to Petitioner, or that it had been used in the past to discriminate against Black persons.
CONCLUSIONS OF LAW
The issue in this case is whether the Respondent violated section 760.10(1), Florida Statutes, by terminating the employment of the Petitioner on August 23, 1982, because of his race. Statutes such as this have uniformly been construed in this context to require proof of intentional racial discrimination, whether by direct evidence or by circumstantial evidence, and the Florida statute is so construed by this Hearing Officer. See e.g. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981); School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).
Farmer v. City of Fort Lauderdale, 427 So.2d 187 (Fla. 1983) is not helpful to this case. It is true that Farmer continues the Florida rule that polygraph tests are still deemed to be so unreliable that the results therefrom (or the refusal to take the exam) cannot be the basis for dismissal from public employment. The polygraph test in this case, however, does not arise in the context of a dismissal from public employment. It arises instead as the proffered reason for termination from private employment. A private employer in Florida may dismiss an employee for any reason, even for alleged bad reasons or wrong reasons. See Catania v. Eastern Airlines, Inc., 381 So.2d 265 (Fla. 3rd DCA 1980); DeMarco v. Public Super Market, Inc., 384 So.2d 1253 (Fla. 1980).
The only issue in this case is whether Petitioner was terminated due to his race. Whether or not the polygraph test evidence in this case is reliable as a "good" reason for termination is irrelevant since Respondent was at liberty to terminate the Petitioner even for incorrect reasons. Respondent's Exhibit 3, the polygraph test, and testimony related thereto is therefore admissible in this case. It is not considered herein as evidence that the Petitioner in fact committed or was involved in any form of stealing from the Respondent as a basis for Respondent's termination of Petitioner' employment. It is admissible as evidence that the decision by Respondent was motivated by considerations other than race.
Whether the procedure for analyzing intentional discrimination set forth in the Burdine case, supra, is used in this case is not material since it
is the conclusion of this Hearing Officer that the Petitioner has failed to carry his ultimate burden of demonstrating that his termination was motivated due to his race. Petitioner stated that Mr. Kenyon told him at the time he was terminated that "security" had reached the conclusion that he should not continue to work at the store. This admission corroborated the testimony of Mr. Kenyon that he had received the results of the polygraph examination and that he and the Respondent always terminated an employee having a negative polygraph test following inventory shortages.
The fact that Mr. Kenyon did not specifically mention the results of the polygraph examination to the Petitioner orally or later in writing, or that the Respondent failed to communicate this fact to Commission on Human Relations during the investigative stages of this case, would ordinarily be persuasive evidence to this Hearing Officer that the Respondent did not in fact rely upon the polygraph examination in reaching the termination decision, and was now asserting this as a pretext to mask racial discrimination. But the evidence ultimately does not support this finding. As stated above, Petitioner was advised by Mr. Kenyon on the day of termination that security would not let him continue to work at the store, and this corroborates the view that Mr. Kenyon was motivated by the results of the security interview (the polygraph examination) and not by Potitioner's race. Further corroboration of a circumstantial nature is found from the fact that the Respondent has not exhibited any statistical racial bias in terminations in the period from early 1980 to August 1983 at Store Number 40105, and from the fact that the Petitioner was immediately replaced by a Black employee.
There was no evidence that the polygraph examination was used in any manner by the Respondent to discriminate against persons because of their race, or that the requirement of a polygraph examination was other than as testified, a normally applied procedure of the Respondent, applicable uniformly to all employees when substantial inventory shortages occurred. Whether or not the polygraph examination of the Petitioner was correctly administered by the examiner or appropriately relied upon by the Respondent is not relevant to this case. Even if the Respondent had made a mistake in reading or relying upon the results of Petitioner's examination, evidence is lacking that such was motivated by impermissible racial considerations.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that the Petitioner has failed to establish that Respondent violated Section 760.10(1), Florida Statutes, with respect to the termination of the Petitioner in August 1984.
RESPECTFULLY SUBMITTED and ENTERED this 4th day of December, 1984.
WILLIAM C. SHERRILL, JR.
Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1984.
P.O. Box 13517
St. Petersburg, Florida 33733
Robert D. McIntosh, Esquire
P.O. Drawer 7025
Ft. Lauderdale, Florida 33338
Mr. Donald A. Griffin, Executive Director
Fla. Commission of Human Relations
