STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY ZEIGLER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3601

)

QUINCY TELEPHONE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Order Granting a Continuance signed by the undersigned on January 28, 1985, and furnished to the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Tallahassee, Florida on March 11, 1985. The issue for consideration was whether the Respondent, Quincy Telephone Company, unlawfully discriminated against the Petitioner on the basis of his race in discharging him from employment.

APPEARANCES

For Petitioner: Paul D. Srygley, Esquire

1030 East Lafayette Street Tallahassee, Florida 32301

For Respondent: Blutcher B. Lines, Esquire

Post Office Box 5500 Quincy, Florida 32351

BACKGROUND INFORMATION

On September 20, 1983, the Petitioner herein, Larry Zeigler, filed a charge of discrimination with the Florida Commission on Human Relations (FCHR), against the Quincy Telephone Company (Company), alleging that on May 26, 1983, he was discharged from employment with the Company and that the discharge was based on his race. On August 22, 1984, the Commission on Human Relations entered a Determination of No Cause and thereafter on September 14, 1984, Petitioner filed a Petition for Relief requesting that FCHR enter an order prohibiting the unlawful employment practice. On October 17, 1984, the Clerk of FCHR forwarded the Petition to the Division of Administrative Hearings for the appointment of a Hearing Officer. The case was initially set for hearing on February 8, 1985, but upon Motion of the Respondent, with good cause shown, the February 8th hearing was continued to March 11, 1985.

At the hearing Petitioner introduced the testimony of Claude L. Butler, a cable splicer with the Company; Cleveland Zeigler, a cable construction worker with the Company and Petitioner's uncle; Melton W. Bruce, a communications officer with the Leon County Sheriff's Department and formerly a coworker of

Petitioner at the Company; and Bruce E. Gaston, supervisor of the cable and construction section at the Company and Petitioner's former supervisor.

Petitioner also testified in his own behalf and introduced Petitioner's Composite Exhibit 1. Respondent presented the testimony of Mr. Gaston, previously identified; Evant Jenkins, a cable maintenance man with the Company; Paul Forshay, former vice-president of the Company; and Lila Corbin, President and General Manager of the Company. Respondent also introduced Respondent's Exhibits A through R.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Petitioner, Larry Zeigler, started working for the Quincy Telephone Company as a lineman in the cable maintenance section in 1976 or 1977. His duties include the installing of telephone cable, both buried and aerial. He worked on the job with Claude Butler, Cleveland Zeigler, and Melton W. (Toby) Bruce. These four men, with several others, made up the entire cable and construction section. Among the men in that section, Butler had the most seniority and as a result did most of the paperwork. The job assignments were banded out to the crews by the supervisor of the section and it was company practice that the senior individual was the one in charge and normally responsible for accomplishing the paperwork.

   
   

2. Telephone installation at this Company is primarily divided into two major sections. Cable and construction (C&C) is responsible for the outside installation of cable and telephone lines up to a building. Installation and repair (I&R) is a separate department which deals with inside wiring and the actual connection of the telephone instruments. C&C is and was at the time in question supervised by Bruce Gaston. I&R was not.

   
   

3. In early May, 1983, Petitioner was transferred for a period of time to I&R to help out though he was still assigned to C&C. Right after lunch on May 27, 1983, he was directed to go to see Bruce Gaston, his supervisor, who advised him that the company was being forced to lay off a number of employees and that he, petitioner, had been selected as one of those. Petitioner contends that neither Gaston nor any other company official ever gave him a reason for discharge other than the force reduction, but this is not so. He claims, however, Gaston did advise at that time that he was aware of petitioner's previous discrimination complaint and that petitioner should not file one this time.

   
   

4. Petitioner was confused over these developments. When he was sent over to I&R to help out, he was told that he was the only one in C&C with the skills needed at I&R. If that were the case, he reasoned, why should he be laid off without warning. In addition, at one point during 1982, Petitioner had asked Gaston for a transfer to I&R but was refused at that time because, according to petitioner, Gaston said he was needed in C&C.

   
   

5. Petitioner was one of three individuals from the C&C section who were

   laid off. The others were Horace Jenkins, who is black, and Toby Bruce, who is white. Several individuals from I&R were also laid off and in the interim since the layoff, at least one new employee has been hired. Petitioner is convinced that he could do the job either in C&C or in I&R which was filled by outside recruitment since he was laid off.

   
   

6. When a new parent company took over the operation of the Quincy Telephone Company in early 1983, there was a meeting held for all company employees at which a senior management official advised the employees that no layoffs were anticipated.

   
   

7. Petitioner denies having any serious trouble with his employment while working for the company. To be sure, there were some rough spots, however. He had some trouble working with Melvin Locke, a more senior employee. According to Petitioner, Locke was lazy and did not want to work, pushing his work off on the Petitioner. They had words and Petitioner brought the matter up with Mr. Gaston. The following day, Mr. Forshay talked with Petitioner about it and advised him to do whatever Locke directed. Though Petitioner did not consider this to be particularly fair, nonetheless, he did as he was told. According to Gaston, however, Petitioner was assigned to work with Locke for on-the-job training in maintenance. It appeared he was selective as to what orders he would follow, refusing to learn how to do maintenance in those areas that did not interest him. On another occasion, according to Petitioner, when he drove a company vehicle into the work lot, Forshay told him he was driving too fast. In doing so, he says, Forshay cursed him in front of outsiders. On still another occasion, he disagreed with the way Forshay handled one of his absences.

   
   

8. In summary of Petitioner's position, he feels that he was discriminated against when discharged because:

   
   

   1. he was there longer than others who were not discharged;

   2. less experienced people were retained instead of him;

   3. he had several disputes with Mr. Forshay; and,

   4. he filed a prior discrimination complaint which he won and had to be rehired.

      
      

9. In May, 1983, Gaston was advised by Mrs. Corbin, the general manager of the company, that there was going to be a reduction in force. He was instructed how to identify those to be retained and those to be discharged. The emphasis was to be placed on selecting the best people for retention - not the worst people for discharge. In other words, supervisors were to examine their people closely with a positive attitude to identify those with the best records and the best potential rather than looking for reasons to discharge those with lesser records or potential. He was advised that of the 9 technicians working for him he would be allowed to retain only 6. Using the criteria given him he selected the 6 he would be able to keep which resulted in Petitioner, Mr. H. Jenkins, and Toby Bruce being identified as those not to be retained.

   
   

10. Gaston then discussed his selections with Mr. Forshay who in turn forwarded them to Mrs. Corbin with his concurrence. Mrs. Corbin made the ultimate selection and decision.

11. In going over the personnel records of the people in his section, Gaston made a memo on each one which he subsequently placed in each employee's file. There were several significant factors on the memo about Mr. Zeigler which contributed to his being one of the lowest three rated individuals in the section. These were:

    
    

    1. He frequently missed work for reasons other than illness. Review of Petitioner's time records kept by Mr. Gaston showed that in 1980. Petitioner was late 6 times and absent 11 times. All absences referred to here are unexcused absences wherein the employee did not call in advance to let anyone know he would not

       be in. This required a readjustment of the work schedule made up in advance on the expectation of the employee's presence.

       In 1981, he was late 5 times and absent

       4 days. Gaston considered this to be an abuse of time off and Petitioner's absentee and tardy rates were much higher than those of the other employees in the section.

    2. Other disciplinary problems:

       1. On October 5, 1981, Petitioner requested that his time sheet be falsified (that time taken off as personal time be reported as sick leave). Petitioner did

          not deny this which, according to the company personnel handbook is grounds for dismissal. Though Gaston recommended this, dismissal action was not taken because it appeared to be an isolated incident.

       2. Petitioner broke his arm and took

       time off to see the doctor with the understanding he would call to report when he would be

       back to work. He failed to call and could not be reached by phone because his service had been disconnected for nonpayment of the bill even though, as a company employee, he got local service free and a discount on toll service. At this point in time, the company

       required employees to have a phone so that they could be reached in an emergency. Petitioner knew this. Again, here, Gaston recommended disciplinary action and again none was taken even though this was the second time this had happened.

    3. Employee conflict with Mr. Locke referenced above.

    4. Petitioner's training scores in courses which, though not required, would be beneficial to him in the performance of his duties, were below standard. He was given the opportunity to take the same material on two separate occasions: once at a company school in Winter Park where his scores were unsatisfactory, and again,

       from a black instructor in Quincy where, again, his score was unsatisfactory. No

       other student failed to achieve a satisfactory score.

    5. Error rate. The reports for January through May, 1983 and after the force reduction, kept by Gaston on the basis of checks made at random with full knowledge of the employees, reveal that the three employees who were laid off from this section were weak with Petitioner having a very high error rate. After the lay off the remaining people doing the same amount of work as before, made fewer errors than while these three were still employed.

    6. Paperwork. From time to time, Petitioner was in charge of details which required the completion of paperwork. His paperwork was unsatisfactory. He would let other people on the job do the paperwork.

       
       

12. In making the decision as to who was to be retained and who was to be released, seniority was not the key element. Performance and capability were more important and seniority was important only if it carried with it the experience and competence needed. On the basis of the above factors, Gaston felt, and it is clear that his judgment was accurate, that Petitioner's record, not considering his seniority, reflected limited potential and competence.

    
    

13. Mr. Gaston did not want to lay off any employees, black or white, because he felt there was ample work to do to keep the entire work force occupied. The work has not let up since the lay off but has increased. Notwithstanding Petitioner's comments that he was not given a reason for his lay off, Mr. Gaston fully explained to each terminated employee why he was being laid off. Mr. Bruce indicates that Gaston told him that if he had his choice, Bruce would still be working. This is true. A similar comment was made to each of the three men being discharged and it had no racial connotation at all. Gaston did want to keep each employee if he could. Race has never been an issue in the department and he always felt race relations were good. Mr. Gaston discharged Petitioner because he was the weakest employee in the section. He was the employee with the least potential for being able to accomplish all the tasks anticipated after the cutback. There are some minor inconsistencies in the official records as reflected by the employee performance appraisal forms rendered on the Petitioner and the personal work records kept by Gaston in his department. They are such things as tardiness and absences and some of the factors relied upon by Gaston in his analysis of the employee which he testified to at the hearing do not specifically appear on the appraisal forms. Gaston justified not putting them there by contending that he felt that at the time the deficiencies were noted, the appropriate corrective action was taken and the matter would not have been raised again had it not been for the cutback. Use of these factors was appropriate in weighing Petitioner's future use to the company in a comparison against other employees.

    
    

14. Mr. Gaston's evaluation of Petitioner appears to have been accurate as other employees with whom he worked, such as Evant Jenkins, indicating that when Petitioner was assigned to him for training for several weeks, Petitioner did well in those areas in which he had an interest, but completely failed to learn anything that did not interest him. Mr. Butler also worked with Petitioner

    frequently and felt that though Petitioner could do the work, there were times he was difficult to work with and insisted on doing things his own way.

    Petitioner's uncle, Cleveland Zeigler, knows Petitioner's work and rates him as an acceptable worker. He states, however, that the people hired since the lay off in 1983 are high quality people and the work standards and performance have improved since that time.

    
    

15. Toby Bruce feels that both Petitioner and Jenkins were highly qualified, perhaps even more so than he. He also feels that the layoffs were not appropriately done in some case with the wrong people being let go. He feels that he was not treated fairly because he had a house mortgage on which to pay, two cars on which to pay, and a family to support and with that, he was let go without notice with only two weeks severance pay. His obvious bias makes his credibility questionable.

    
    

16. Mrs. Corbin made her ultimate decision on who would be retained and who would not on the basis of the entire personnel record of each employee which she reviewed over the several weeks prior to the cutback. She contends she had no choice in implementing the layoffs - that though she fought against them, she was directed by higher headquarters to put them into effect. She is convinced that Petitioner is a good construction man but his performance reports showed that he needs training in maintenance and it is her confirmed opinion that he could not compete with those identified for retention. It was on this basis and not on race that the decision was made to let him go. Race has not been an issue with the company and in fact there is a very active and strong equal opportunity program in effect.

    
    

17. Of the 11 people cut from the total work force, 6 were white and 5 were black. Even after the cutback, blacks still accounted for 32 percent of the staff of 65.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings. Section 760.10(a)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual because of such individual's race.

    
    

19. In an employment discrimination case such as here where an individual alleges he was subject to disparate treatment because of his race, he has the initial burden of establishing by a preponderance of the evidence, a prima facie case of discrimination. If he does so, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the actions taken. Texas Department of Commonwealth Affairs v. Burdine, 101 S. Ct. 1089 (1981).

    
    

20. Here the evidence reveals that Respondent was terminated because his performance over the six or seven years prior to termination was not sufficiently meritorious to rank him in the top 6 technicians within the section for whom positions were to be retained. Petitioner was not discharged because of his race or because of anything he did, but because his record was not good enough to support his retention. The evidence is quite clear that in the opinion of those empowered to make that decision, that is Mr. Gaston, Mr. Forshay, and Mrs. Corbin, Petitioner's record was simply insufficient to rate him in the top 6 of his section.

21. Petitioner has failed to show racial discrimination and has failed to show that his termination was the result of anything other than his own failure to have achieved a sufficiently good record to fall within the criteria for retention at the time of a company ordered cutback.

    
    

22. Accordingly, it is concluded that Petitioner was not discharged because of his race.

RECOMMENDATION

Based on the foregoing, therefore, it is RECOMMENDED that the petitioner, Larry Zeigler's Petition for Relief be denied.

RECOMMENDED in Tallahassee, Florida, this 29th day of March, 1985.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985.

COPIES FURNISHED:

Paul D. Srygley, Esquire 1030 East Lafayette Street Tallahassee, Florida 32301

Blutcher B. Lines, Esquire

P.O. Box 5500

Quincy, Florida 32351

Donald A. Griffin, Executive Director Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003601

Orders for Case No: 84-003601