vs. ) CASE NO. 86-2265
NATIONAL SAFE COMPANY. )
Respondent. )
A final hearing was held in the above styled case on September 8, 1986 in Clearwater, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Waldense D. Malouf, Esquire
Respondent: I. Ward Lang, Esquire
During the hearing, the parties called three witnesses. Petitioner introduced three exhibits and Respondent introduced five exhibits. A transcript of the hearing was filed on September 18, 1986. The time for submitting proposed findings of fact and conclusions of law was extended at the request of the Petitioner, and timely filed proposed findings of fact and conclusions of law have been considered in the preparation of this Recommended Order.
Petitioner was employed by Respondent from May, 1981 until January, 1985.
On January 17, 1985, Petitioner arrived at work at approximately 7:00
A.M. and began preparation for her day's work. At approximately 7:30 A.M. her supervisor, James A. Spencer, called her into his office to inform her about complaints he had received concerning Petitioner. Spencer did not intend to, and in fact did not, discipline Petitioner, but simply wanted to counsel her about the complaints.
Spencer informed Petitioner that other employees had complained about her discussing religion while on the job, and also her offensive body odor and personal hygiene. Spencer simply felt Petitioner should know about these complaints so she could take corrective action concerning personal hygiene and discontinue discussing religion with other employees while on the job.
Petitioner asked Spencer to tell her which employees had complained about her. When Spencer refused, Petitioner became very upset, angry and loud, saying she could not continue to work while co-workers were talking about her like this. Spencer asked her to settle down, relax, go to the ladies' room to regain her composure, and then return to work. Instead of following Spencer's directions, Petitioner returned to her work station, gathered her personal items and left without punching out. She left because she was upset and did not ask for, or receive, permission to leave work.
When Petitioner was employed she received a copy of Respondent's rules and regulations. Rule 8 is as follows:
To leave the plant before the end of your shift, you must have the approval of your supervisor. In case of an emergency, be sure to notify your assistant production manager prior to leaving if you cannot locate your supervisor.
Petitioner did not inform either her supervisor or assistant production manager when she left the plant on January 17, 1985.
Approximately two or three hours after leaving her job, Petitioner returned to work. Petitioner was not allowed to resume her job because Respondent's policy is to treat employees who walk off their job in violation of Rule 8 as having quit. Further, Respondent's policies do not allow rehiring employees who quit without proper notice.
Arthur Wallace, Vice President, testified about the policy which precludes rehiring of Petitioner, and it does appear that Respondent's written company policies expressly deal with the situation of rehiring former employees. Respondent's rule provides:
Former employees who left the Company voluntarily or through no fault of their own may be considered for re-employment.
This rule is applicable because although Petitioner left her job while extremely upset and without notice, she was not asked to leave by her supervisor. She was deemed to have quit her job due to actions which were her own fault. Spencer told her to go back to work after going to the ladies' room to regain her composure. To the contrary Petitioner left work on her own, without permission, and was therefore considered to have quit her job. Thus, the above cited company rule precludes her re-employment.
Respondent has rehired other employees when those employees gave proper notice and voluntarily quit, but no evidence was produced to show other employees who had violated Rule 8 had been rehired by Respondent.
Respondent's company rules also allow for immediate termination, without notice, for flagrant insubordination. Petitioner left her job without informing her supervisor, or seeking his permission. She disregarded directions and acted inappropriately while he was counseling with her by becoming loud, angry and upset. Her failure to inform Spencer that she was leaving gave him no opportunity to transfer someone else to her job for the day. Instead, she
impaired the operations of the company since her work was not completed during her absence. Petitioner's actions in violation of Rule 8 therefore constituted flagrant insubordination for which termination would have been appropriate, had she not been deemed to have quit.
Petitioner filed a charge of discrimination with the Equal Employement Opportunity Commission and the Florida Commission on Human Relations on February 7, 1985 alleging discrimination based on sex and religion. The case was deferred to the Clearwater Office of Community Relations on February 11, 1985, which thereafter conducted an investigation and attempted conciliation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes; City of Clearwater Ordinances Numbered 1543, 1959 and 2004.
The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains her initial burden, the Respondent would then have to establish some legitimate, nondiscriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256.
Petitioner has failed to establish a prima facie case of discrimination. She left her job without telling her supervisor, contrary to instructions that she go to the ladies' room to relax, and contrary to established company rules. Her actions amounted to a flagrant violation of Rule
8 which would have been grounds for immediate termination had she not been deemed to have quit her job.
Absolutely no evidence has been offered to establish that Petitioner's job was even available when she returned to the company on January 17, 1985, or that she in fact applied for reemployment at that time. She simply returned to work, was told she could not be rehired under these circumstances, and she left.
Respondent declined to rehire Petitioner for legitimate, non- discriminatory reasons consistent with company policies of which she was aware, and which have been enforced by Respondent strictly and consistently. Petitioner's supervisor, James Spencer, had good cause and legitimate reasons for counseling with her on January 17, 1985. It was Petitioner's reaction to this counseling that was inappropriate, and resulted in her insubordination and the quitting of her job.
In this case, the Petitioner alleges that Respondent has discriminated against her on the basis of her religion and her sex by refusing to rehire her after she quit her job and walked out of the plant, without giving any notice, on January 17, 1985. However, the overwhelming weight of evidence that the Petitioner cannot even establish a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, non-discriminatory reasons. Respondent followed established and written company and personnel policies in refusing to rehire the Petitioner after she quit her job and violated company rules. Finally, Respondent has convincingly rebutted any allegation of pretextual treatment in
the Petitioner's attempt to compare her situation with that of other employees who had been rehired after they had voluntarily quit with appropriate notice. Thus, the Petitioner's charge of discrimination must be dismissed.
Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent.
DONE AND ENTERED this 5th day of November, 1986 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1986.
Waldense D. Malouf, Esquire 1003 Indiana Avenue
I. Ward Lang, Esquire Post Office Box 105250 Atlanta, Georgia 30345
Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33515
Ronald M. McElrath, Coordinator Office of Community Relations Post Office Box 4745 Clearwater, Florida 33518
