STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUAL D. HAYES, )

)

Petitioner, )

)

vs. ) Case No. 85-2248

) MARTIN MARIETTA DATA SYSTEMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 21, 1985 in Orlando, Florida.

APPEARANCES

For Petitioner: Harry L. Lamb, Esquire

621 North Fern Creek Avenue Orlando; Florida 32803

For Respondent: Thomas C. Garwood, Jr., Esquire

Christine M. Alber, Esquire

57 West Pine Street, Suite 202 Orlando, Florida 32801

This proceeding began when petitioner, Samual D. Hayes, who is black, filed a complaint with the Florida Commission on Human Relations on November 8, 1982, alleging that respondent, Martin Marietta Data Systems, had terminated his employment with that firm because of race. After conducting a preliminary investigation, the Commission found probable cause on October 5, 1984 that an unlawful employment practice had occurred.

Respondent's request for redetermination of that finding was denied by the Commission's Executive Director on January 25, 1985. When efforts to conciliate the complaint failed, a petition for relief was filed by Hayes on June 18, 1985.

The petition was forwarded by the Commission to the Division of Administrative Hearings on July 2, 1985 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated July 27, 1985, the final hearing was scheduled on

October 15, 1985 in Orlando, Florida. At the request of respondent and without objection by petitioner, the hearing was rescheduled to November 21, 1985 at the same location.

At final hearing petitioner testified on his own behalf and presented the testimony of James Lacovari. He also offered petitioner's exhibit 1 which was received in evidence.

Respondent presented the testimony of William Spangler, Ben Morrall, Jr, George P. Wood, Helen Adams, Virginia Wright and Sharon Ann Savage, and offered respondent's exhibits 1-6. All were received in evidence.

A copy of the transcript of hearing was not filed with the undersigned, and consequently this Recommended Order has been prepared without the benefit of same. Proposed findings of fact and conclusions of law were filed by the parties on December 30 and 31, 1985. A ruling on each proposed finding of fact has been made in the Appendix to this Recommended Order.

The issue herein is whether petitioner was unlawfully terminated from his employment with respondent because of race.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Samual D. Hayes, who is black, was initially hired by respondent, Martin Marietta Data Systems, Inc. (Martin Marietta) in 1978. Martin Marietta is an employer within the meaning of Subsection 760.02(6), Florida Statutes, and has offices in Orlando, Florida. Hayes first served in the position of senior computer systems designer at a salary of $19,500 per year. He later received a promotion to senior business systems designer, then held the position of product support manager, and eventually became a manager II and head of the engineering sup- port section of the engineering and scientific systems group. In that position he was in charge of approximately twenty other persons, and was considered a part of the managerial staff of the firm. His final salary with Martin Marietta was $36,900 per year. Throughout his tenure with the firm, Hayes received good evaluations concerning the quality of his work.

   
   

2. On August 16, 1984 Hayes was terminated from employment with Martin Marietta. He was charged with "misconduct." Underlying the charge of misconduct were allegations that Hayes has sexually harassed two female employees of the firm, and a female applicant for employment. Almost three months later he filed a complaint with the Florida Commission on Human Relations alleging that the sexual harassment charges were merely a pretext

   on the part of the employer, and that he was actually discharged because of his race. That prompted the instant proceeding.

   
   

3. Martin Marietta is a division of Martin Marietta Corporation and is basically engaged in the computer service industry. It generally provides computer software packages, consulting services, data processing services, and all internal accounting for its parent corporation. At the present time it employs some 4,000 employees in the United States and some 1,200 in Great Britain. Since 1964 the firm has had a policy which prohibits discrimination based upon race, sex or ethnic backgrounds. That policy is consistent with federal guidelines. In addition, at all relevant times it had a specific company policy which required the "maintenance of a work environment free of sexual . . . harassment." This policy was incorporated into the written Corporate Policy Manual of the company and was disseminated to all managerial level employees to ensure compliance with the policy. As a manager, Hayes was familiar with this policy and the general prohibition against sexual harassment.

   
   

4. Martin Marietta is a contractor on the list of firms qualified to bid on federal government projects. Under federal law, a government contractor is subject to having its contract cancelled, payment withheld, or to be taken off the bidding list if the firm is found guilty of sexual harassment. A contractor is also subject to liability in a civil action for sexual harrassment acts of its employees. As such, Martin Marietta was serious in its efforts to prevent sexual harassment, and to punish any employee found guilty of those charges. It demanded stricter compliance with the policies by its managerial level employees, since it was they who the firm expected to enforce company policies regarding discrimination and harassment.

   
   

5. Helen Adams was a married female employee under the supervision of Hayes. In January, 1982 she attended a weeklong company seminar at the Gold Key Inn in Orlando. One afternoon during the seminar, Hayes telephoned her from the lobby and asked if he could come up to her room to see how she was doing. She agreed. Once there, he began talking about "intercourse," and then grabbed her and kissed her. Adams pushed him away and demanded he leave the room. About two days later Hayes apologized. However, the next time he called her into his office at work, he pushed his chair back from his desk where he was sitting, and displayed an erection through his pants. According to Adams, he continued to do this "all the time" until his discharge in August. During this same period he attempted on one occasion to put his arm around Adams, and he propositioned her on another occasion. He also cautioned her that the company's personnel officer was a close friend and it would do her no good

   to complain. Because of this, and the fact that she was a new employee and fearful of losing her job, she made no complaints to other company personnel. After she finally complained to another supervisor and attempted to transfer to his section, Hayes told her to "cut out the bull-shit." Adams' complaints finally surfaced in August, 1982 when other complaints were lodged against Hayes. She is now considering a law suit against Martin Marietta for Hayes' actions.

   
   

6. Virginia Wright is a single female who worked for Martin Marietta between December, 1977 and September, 1983. She was under the direct supervision of Helen Adams, whose section Hayes managed. She was in daily contact with Hayes since her work area was immediately adjacent to Hayes' office. While working on her terminal one day in January, 1982 Hayes approached her and placed his hands on her shoulders and began massaging them. He told her he could make her "feel good" and that they should get together. When she appeared afraid, he backed away. In February she asked for a transfer but was told by Hayes they would have to get together in her apartment and talk about it. When she threatened to complain, Hayes told her she was "fat and black," and that nobody would believe her. Wright was initially reluctant to complain because she was embarrassed, because it was her word against that of a manager, and because the head of Martin Marietta EEO was a good friend of Hayes. In August, 1982 she finally voiced her complaints to personnel after she was transferred to what she considered to be a less responsible position. Just before she formally voiced her complaints, Hayes approached her and said "I know what you did, now you'll pay."

7. Sharon Ann Sconiers (now Savage) was seeking employment with Martin Marietta. Sconiers, who was a single parent at the time, was a former college roommate of Virginia Wright, and was encouraged by Wright to contact Hayes concerning employment. The three agreed to meet at an Orlando area restaurant for lunch one day in February, 1982. At their meeting Sconiers gave Hayes her resume which also contained her unlisted telephone number. Hayes also inquired about her marital status, and was told she was a single parent. After lunch, and while assisting Sconiers to her car, Hayes told her she must be lonely and that he could help her end her lonely nights. A few days later, Hayes telephoned her at home- late one Friday afternoon. After she inquired about her job application, he advised her he was still reviewing it. He then asked her to spend the weekend with him in Lakeland where a basketball tournament was being played. She declined. On her birthday she received a card from Hayes. Sometime later, Hayes told Virginia to tell Sconiers he had lost her job application and if she still wanted a job, she would have to fill out another application. In August, Sconiers learned of other sexual harassment complaints against Hayes and revealed Hayes' advances

   to Martin Marietta personnel.

   
   

8. Hayes contends that other Martin Marietta employees were guilty of misconduct, but were treated less harshly than he. Specifically, he referred to a situation involving Jim Elliott, a white manager, who was "involved" with a female employee. But in the case of Elliott, it was a voluntary "affair" between the two, and no complaints had been filed. Elliott was promptly transferred to another section when the affair was discovered. Hayes also spoke of Chris Larson, another white manager, who was allegedly involved in similar sexual harassment charges. But other than Hayes' vague allegations, and the testimony of a second employee who stated there were "rumors" concerning Hayes, there is no credible evidence that Larson did indeed commit such an offense, or that any complaints of this nature were ever filed against him. Finally, Hayes testified that there were "altercations" by unnamed managers at the Gold Key Inn on undisclosed dates and they were simply counseled for their actions. However, this allegation was not explained, corroborated or confirmed by any competent testimony.

9. Uncontradicted testimony established that Martin Marietta did not treat Hayes differently because he was black. The company felt compelled to fire him once it learned the com- plaints of the three women were valid, especially since Hayes occupied a managerial level position and one of the charges involved a prospective employee. Moreover, the company was extremely vulnerable due to its status as a government contrac- tor. It is not the first time a Martin Marietta employee has been fired for such conduct. Indeed, a white plant manager in South Carolina with 25 years of service was discharged for simi- lar conduct in June, 1981. Some four months later, a black foreman at the same plant had no action taken after similar charges were shown to be groundless.

   
   

10. Hayes contends that the charges against him were not properly investigated prior to his dismissal, that the three women conspired against him collectively, and suggests that the written statements against him by Adams, Wright and Sconiers were solicited only after he had already been fired. But the evidence reveals that the EEO officer (Ben Morrall, Jr.) in the aerospace division of Martin Marietta first learned of the alleged misconduct by Hayes through Wright and the husband of Adams around June or July of 1982. This information was conveyed to Hayes' affirmative action officer who informed Hayes of the allegations. When Morrall's request for an investigation of the charges went unheeded, Morrall telephoned corporate headquarters in Bethesda, Maryland. Headquarters then initiated an appropriate investigation which included interviews with the three women. It then became a matter of whether the company

    believed the three complaining witnesses, or Hayes. Accepting the women's stories as being true, the company made the decision to fire Hayes, and not offer him severance pay or a lateral transfer to another position elsewhere. Notes of these interviews were compiled and reviewed prior to this decision.

    The substance of the interviews was memorialized in notarized statements after Hayes filed his complaint with the Commission. The undersigned has found no evidence to support the "conspiracy" theory as suggested by Hayes, and instead finds the testimony of the three women to be credible. The undersigned also finds that Hayes' race (black) did not enter into or affect in any way the decision of the company to terminate the employee.

    CONCLUSIONS OP LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. Subsection 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer "[t]o discharge . .

    . any individual . . . because of such individual's race." To establish an unlawful employment practice, the burden of proof rests upon the discharged employee to present by competent and substantial evidence a prima facie case that such a practice has occurred. If such a case has been presented, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for discharging that employee. If this burden is met, the employee must then prove that the stated reason for discharge is a mere pretext, and that discrimination was the real motive. Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248 (1981).

    
    

13. Hayes met his initial burden through evidence, which standing alone, established a prima facie case that he is black, that he was discharged from his employment with respondent, and that similarly situated non-black males were allegedly not so adversely treated. However, respondent has successfully countered those allegations by a greater weight of the evidence that Hayes was discharged for a legitimate, nondiscriminatory reason, sexual harrassment, and that there was no racially motivated reason for his termination. At the same time, it has dispelled the suggestion of Hayes that the employer treated Hayes less favorably than others merely because of his race. The evidence shows that the company fired a white manager for identical reasons to those used to fire Hayes, and a black foreman was not fired when similar charges proved groundless. Hayes' contentions regarding other inappropriate acts of Martin Marietta employees were either unsupported by the evidence, or were clearly distinguishable in severity from the offenses for which he was charged. Therefore, it is concluded that no "disparate treatment" occurred within the meaning of that term.

14. There being a legitimate, nondiscriminatory reason for Hayes' firing articulated by the employer, and there being a lack of credible evidence to show that the proffered reason was a mere pretext, Hayes' complaint should be dismissed with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the petition for relief be DISMISSED with prejudice.

DONE and ORDERED this 13th day of January, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 13th day of January, 1986.

COPIES FURNISHED:

Harry L. Lamb, Esquire 621 N. Fern CreeX Ave. Orlando, Florida 32803

Thomas C. Garwood, Jr., Esquire Christine M. Alber, Esquire

57 W. Pine St., Suite 202 Orlando, Florida 32801

Dana Baird, Esquire

Fla. Comm. on Human Relations Bldg. F, Suite 240

325 John Knox Road Tallahassee, Florida 32303

APPENDIX

PETITIONER

1. Covered in finding of fact 1.

   
   

2. Covered in finding of fact 1.

   
   

3. Rejected as being unnecessary.

   
   

4. Covered in finding of fact 10.

   
   

5. Rejected as being unnecessary.

   
   

6. Rejected as being unnecessary.

7. Rejected as being contrary to the evidence.

8. Partially rejected and partially covered in finding of fact 10.

   
   

9. Rejected as being contrary to the evidence.

   
   

10. Covered in finding of fact 8.

    
    

11. Covered in finding of fact 11.

    
    

12. A portion of this finding is covered in finding of fact 8 and a portion has been rejected as being irrelevant.

    
    

13. Rejected as being contrary to the evidence.

    
    

14. Rejected as being contrary to the evidence.

    
    

15. Partially covered in finding of fact 1. RESPONDENT:

1. Covered in finding of fact 1.

   
   

2. Covered in finding of fact 1.

   
   

3. Covered in finding of fact 1.

   
   

4. Covered in finding of fact 10.

   
   

5. Covered in finding of fact 10.

   
   

6. Covered in finding of fact 10.

   
   

7. Covered in findings of fact 5 and 10.

   
   

8. Covered in findings of fact 6 and 10.

   
   

9. Covered in findings of fact 7 and 10.

   
   

10. Covered in finding of fact 10.

Docket for Case No: 85-002248

Orders for Case No: 85-002248