STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY DRAKE, )

)

Petitioner, )

)

vs. ) Case No. 86-4014

) WHATABURGER, INCORPORATED, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert

1. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 28, 1957. The Division of Administrative Hearings received the transcript of proceedings on March 4, 1957, and the parties filed proposed findings of fact and conclusions of law on March 18, 1957. The appendix to the recommended order addresses proposed findings by number.

   
   

   Petitioner appeared at hearing pro se, but counsel subsequently entered an appearance on his behalf. Respondent appeared through counsel throughout the proceedings.

   
   

   For Petitioner: Karen Lessard, Esquire

   15 West LaRua Street Pensacola, Florida 32501

   
   

   For Respondent: Stephen W. Metz, Esquire

   Messer, Vickers, Caparello, French and Madsen

   Post Office Box 1576 Tallahassee, Florida 32302

   
   

   In response to petitioner's complaint that respondent discriminated against him on account of his race in terminating his employment, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" dated September 9, 1986. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.00(1), Florida Administrative Code, see Publix Supermarkets, Inc., v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1955), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.5i(1)(b)3., Florida Statutes (1986 Supp.).

   
   

   By his petition for relief, petitioner seeks backpay with raises included, benefits restored including profit sharing and his job back with full vacations.

   
   

   ISSUE

   
   

   Whether respondent discriminated against petitioner on account of his race in terminating his employment?

   FINDINGS OF FACT

   
   

   1. Larry Drake, who is black, began his employment at Whataburger, Inc., on May 2, 1983, as a management trainee in Pensacola. He trained first under June Bell at Unit No. 168, then under Kin Pearson at Unit No. 42.

      
      

      New Warrington Road

      
      

   2. On July 17, 1983, he became assistant manager at Unit No. 25, Whataburger's restaurant on New Warrington Road, where he was put in charge of the "early bird" or late night shift, from eleven at night to seven in the morning. Randall Potts occasionally worked the late night shift, and, during his tenure as assistant manager in charge of the shift, Mr. Drake supervised Elijah Johnson and Randy Cotton, as well. He initially supervised only one employee, but when Linda Blevins began on the late night shift, he also supervised her.

      
      

   3. As manager of Unit No. 25, Byron Reno was Mr. Drake's supervisor while Mr. Drake worked there. Mr. Reno came in at six or seven in the morning and left before the late night shift began, but he saw petitioner when the night shift started on numerous occasions, in addition to occasionally overlapping petitioner's shift in the morning. He worked with Mr. Drake when, as sometimes happened after Mr. Drake's initial three months at Unit No. 25, Mr. Drake worked the day shift.

      
      

   4. On October 30, 1983, Mr. Reno prepared a written evaluation of petitioner's job performance on a form calling for a "CLASSIFICATION EVALUATION" and for a separate "PERFORMANCE EVALUATION." Respondent's Exhibit B-2. On the "CLASSIFICATION EVALUATION" section, he gave hid a total score in the "needs improvement" range, although written comments indicated he was "FULLY ADEQUATE IN MOST AREAS." On the "PERFORMANCE EVALUATION, he gave him a score of 41.4, half a point from the "needs improvement" cut-off. These ratings may be lower than those for "the bulk of the" (T.i27) assistant managers. By May 5, 1904, when Mr. Reno prepared a second evaluation using the same format, he rated petitioner fully adequate overall, and gave him a score in the outstanding range for "CLASSIFICATION EVALUATION." Respondent's Exhibit A-2.

      
      

   5. Sometimes petitioner complained he was tired when he reported for work at Unit No. 25, and Mr. Reno felt his energy level was low in general. Mr. Reno also felt that inaccuracies in the daily reports and in inventory reports should be eliminated.

      
      

   6. During the time Mr. Drake worked at Unit No. 25, Sonya Jarman worked, at various times, on both day shifts. On the later shift, she was sometimes unable to leave at eleven, because petitioner had not yet arrived at work. Sometimes she telephoned petitioner to wake him up so he would relieve her. On the other hand, Mr. Drake also "stayed over plenty of times" (T.75, 76) for late replacements.

      
      

   7. On the earlier day shift, Ms. Jarman sometimes arrived to find that the night shift's paperwork had not been done. Mr. Drake asked her more than once to do the paperwork for the night shift, saying he would help serve customers. Sometimes he sat in his office, reading the paper and smoking cigarettes, while Ms. Jarman completed reports which night shift personnel were charged with filling out.

   8. One night Mr. Drake was on duty, Ms. Jarman was summoned "to fix the register because the drawer had jammed." (T.149). When she arrived, she found petitioner had left the premises, leaving the cash register with open drawer in the care of a subordinate.

      
      

   9. In general, Ms. Jarman characterized her experience working with petitioner as "wild." In her opinion, "Larry ... just wasn't Whataburger material." (T.14i) He did not pitch in when things got busy. He was slow on the grill ... and even on the board he wasn't fast (T. 148).

      
      

   10. For part of the time petitioner worked as assistant manager at Unit No. 25, Elijah Johnson worked under his supervision as a crew leader. Mr. Johnson once left the premises to buy Krispy Kreme doughnuts. Petitioner once left to buy cigarettes.

       
       

       Gregory Street

       
       

   11. When Mr. Drake tired of working the graveyard shift, he asked the senior area supervisor, Mr. Turbeville, for a new assignment. Mr. Turbeville obliged and petitioner began work at the Gregory Street Whataburger, Unit No. 42, as assistant manager for the day shift, on August 12, 1984, under the supervision of Bob Echois, a long-time Whataburger manager and a former marine.

       
       

   12. The third time in eight days that petitioner reported late for work, Mr. Echois, who had come to view petitioner as incompetent after he sent to the bank $100 more in cash than the deposit slip reflected, made a written report of Mr. Drake's tardiness and forwarded it to Mr. Turbeville, the area supervisor, who counselled petitioner, urging him to come to work on time.

       
       

   13. Mr. Turbeville was present on August 28, 1984, when petitioner arrived

       1. or 30 minutes late, his fourth late appearance for work at Unit No. 42. He had had a flat tire on his way to work, abandoned the car, and run the rest of the way. Mr. Turbeville asked for directions to the abandoned car, confirmed that the tire was flat, and asked Mr. Drake to report to his office the following day.

          
          

   14. At the meeting the following day, Mr. Turbeville placed him on disciplinary leave for four days for "excessive tardiness," Respondent's Exhibit A-30, after first, however, telling him he was going to fire him.

       
       

   15. To this, petitioner had responded with a claim that another employee, Ronnie Hill, had an even less satisfactory record for prompt arrivals which, he said, the time cards would bear out; and he threatened to retain a lawyer. It was true that Ronnie Hill arrived late some days, but it was because Mr. Echois instructed him to pick up certain supplies on his way to work. (T.157) Ronnie Hill is white.

       
       

       Unit No. 21

       
       

   16. Instead of returning to Mr. Echois' supervision, petitioner reported to Unit No. 21 on September 2, 1994. He chose this assignment over returning to Unit No. 25, the alternative Mr. Turbeville offered. Petitioner felt the manager of Unit No. 21, Kim Pearson, did not back him up properly in his dealings with a subordinate, who was also a friend of the manager. In any

       event, the manager of Unit 21 gave petitioner a written reprimand for "[f]ailure to use proper set out procedure for breakfast items," Respondent's Exhibit A-28, on October 29, 1984, but, on November 3, 1984, rated him fully adequate in his overall classification and performance evaluations, while indicating that improvement was needed in certain categories, including dependability.

       
       

   17. Jack Riley replaced Don Turbeville as Whataburger's senior area supervisor. In speaking to managers in the area, he asked most of them, including Pearson, how he could help improve day-to-day operations. In reply, Mr. Pearson complained that Mr. Drake would not take directions.

       
       

   18. Mr. Riley had not received a good report from Mr. Turbeville about Mr. Drake, and, in visiting Whataburger outlets, had not been favorably impressed with petitioner. Once he walked in the unit... "[and] was probably in the unit ten to fifteen minutes before Larry even knew ... [H]e was busy reading the newspaper." (T.163) One Sunday afternoon he found petitioner watching a basketball game on a television set he had brought to work. (T.62).

       
       

       Unit No. 169

       
       

   19. In order, he testified, to see how petitioner Drake would do in a "clean environment," Mr. Riley transferred him to Unit No. 169, where Jamie Harrelson was manager, and assigned him to the late night shift. The transfer was effective March 3, 1985. Respondent's Exhibit A-32. Some two weeks later, Mr. Riley terminated petitioner's employment, effective March 16, 1905. In the interim, Messrs. Drake and Riley spoke three times, the first at Mr. Riley's office when petitioner asked why he had been transferred. As reasons for discharge, Mr. Riley cited "poor attitude, failure to follow orders and being late for work on several occasions."

       
       

   20. Petitioner did not do his job well at Unit No. 169. He ignored instructions the manager left for him in a notebook, refused to look at her when she spoke to him, called the manager at home at 10:30 or 11:00 at night to complain about his schedule, called her at two in the morning to ask her permission to lend another Whataburger unit a CO2 tank which, as assistant manager, he might well have lent without special authorization, and arrived late for work by, at least on one occasion, well over an hour. That night he called to say "he was having his car repaired at almost 9:00 o'clock at night." (T. 203).

       
       

   21. Assistant managers who were white have been terminated "for being late to work in the same situation. (T.169)

       
       

   22. Mr. Riley believed that no Whataburger manager in Pensacola was willing to accept petitioner as an assistant manager.

       
       

       Employees' Race

       
       

   23. On June 2, 1985, Whataburger promoted Elijah Johnson, a black assistant manager, to manager. On January 27, 1985, Whataburger promoted Sandra Mack, another black assistant manager, to manager.

       
       

   24. Under Mr. Riley, who is white and still works as the senior area supervisor, Whataburger's employment of black persons reached a peak in the Tallahassee-Pensacola area. Of the 174 persons Whataburger employs in the area as "team members," 45, or 26 percent, are black. About 26 percent of the assistant managers in the area are also black and, since the recent promotions,

       three of eleven (or 33 percent) of the managers are black. Fifty-eight percent of the area's "team leaders" and 67 percent of the "breakfast coordinators" in the area are black.

       
       

   25. Until Mr. Drake made these accusations, neither Whataburger nor any of the managers with whom he worked had been accused of discriminating on grounds of race. Nor, however, was there a black manager in Pensacola until after petitioner was fired and complained to the FCHR.

       
       

       CONCLUSIONS OF LAW

       
       

   26. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1985), to "discharge ... any individual ... because of such individual's race ... " Section 760.10(1)(a), Florida Statutes (1985).

       
       

   27. Ever since the decision in School Board of Leon County v. Harqis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Drake, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982). He has the burden initially to prove facts making out a prima facie case that he was discharged on account of race, after which respondent need only articulate a legitimate, nondiscriminatory reason for the termination in order to place upon petitioner the burden of proving that the asserted reason is pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp.

       v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

       
       

   28. Assuming, in the present case, that petitioner has met his initial burden, he plainly failed to prove that Whataburger did not discharge him for the legitimate, nondiscriminatory reasons given at hearing. Mr. Riley's testimony that he believed petitioner could not work satisfactorily with any of the Whataburger unit mangers in the area was credited, and the belief appeared reasonable, in the circumstances. Nor did the evidence prove that this incompatibility was in any way related to race. Instead, it seemed attributable to the poor attitude on petitioner's part cited by Mr. Riley at the time of termination.

       
       

   29. The evidence also established the authenticity of the other reasons cited contemporaneously with discharge, i.e., tardiness and failure to follow orders. Even though the senior area supervisor who decided to discharge petitioner did not become aware of the full extent of petitioner's derelictions in this regard until after the fact, he knew enough to justify discharging petitioner for the same reasons which, according to uncontroverted testimony, have cost white employees similarly situated their jobs. The evidence proved that petitioner was "discharged for a series of incidents, not related to h[is race], which were reasonable grounds for h[is] discharge." Ammons v. Zia Co. , 448 F.2d 117, f2a (10th Cir. 1971).

It is, accordingly, RECOMMENDED:

That the Florida Commission on Human Relations dismiss the petition for relief.

DONE and ENTERED this 30th day of April, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

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 30th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 10, 11,

17, 20, 22, 24, 25, 31 and 33 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 7 has not been adopted because, although Mr. Johnson testified petitioner got along well with almost all of his fellow workers, he testified that petitioner and Ms. Jarman did not get along well; and he also testified to the time petitioner left his station to get cigarettes.

Petitioner's proposed finding of fact No. 9 has been adopted, in substance, except that the evidence indicated that petitioner was in fact suspended, not that the suspension was rescinded; although the suspension was in lieu of the termination originally proposed.

Petitioner's proposed finding of fact No. 12 has been rejected as against the weight of the evidence.

With respect to petitioner's proposed findings of fact Nos. 13, 14 and 15, the evidence did show that other employees were occasionally late, but not that anybody else was as late as frequently as petitioner; and the evidence showed that the others telephoned when they were going to be late, which petitioner did not always do. The uncontroverted testimony was that a white assistant manager who had a problem getting to work on time comparable to petitioner's was not only reprimanded, but fired. Ronnie Hill was "late" because he picked up supplies on the way to the restaurant in accordance with his manager's instructions.

In addition to the matters set out in petitioner's proposed finding of fact No. 16, there was testimony of minor bookkeeping problems, ten dollars here or there, and other minor problems with regard to inventory record keeping.

Petitioner's proposed finding of fact No. 18 has been adopted, in substance, insofar as material, except for the last statement, which has been rejected as contrary to the evidence.

Petitioner's proposed finding of fact No. 19 has been adopted, in substance, except that Ms. Jarman's testimony was credited, and not rejected as unreliable.

With respect to petitioner's proposed finding of fact No. 21, Mr. Reno also testified that petitioner was slow in performing his work.

Petitioner's proposed finding of fact No. 23 has been rejected as contrary to the evidence.

Petitioner's proposed finding of fact No. 27 is generally accurate. The evaluation in May of 1984 also described two traits as needing improvement.

Petitioner's proposed finding of fact No. 28 has not been adopted because it is not true in every case, e.g., training.

Petitioner's proposed finding of fact No. 29 has been rejected as contrary to the weight of the evidence.

Petitioner's proposed finding of fact No. 30 is treated in paragraphs 15 and 16 of the findings of fact in the recommended order.

With respect to petitioner's proposed finding of fact No. 32, friction did develop and come to the attention of the area supervisor, although the precise reasons were not fully illuminated by the evidence.

Petitioner's proposed finding of fact No. 34 has not been adopted because the evidence did not show that anybody assigned petitioner any duties in an effort to get rid of him.

Respondent's proposed finding of fact Nos. 1, 2, 3, 4, 5 and 6 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact No. 7 has been treated in paragraphs 2, 3, 4 and 5 of the findings of fact in the recommended order.

Respondent's proposed finding of fact No. 8 has been treated in paragraphs 6, 7, 8, and 9 of the findings of fact in the recommended order.

Respondent's proposed finding of fact No. 9 has been treated in paragraphs 11, 12, 13, 14 and 15 of the findings of fact in the recommended order.

Respondent's proposed finding of fact No. 10 has been treated in paragraphs 16, 17 and 18 of the findings of fact in the recommended order.

Respondent's proposed findings of fact Nos. 11, 12 and 13 have been treated in paragraphs 19 and 20 of the findings of fact in the recommended order.

Respondent's proposed findings of fact Nos. 14, 15, 16 and 17, to the extent they are not proposed conclusions of law, have been treated in paragraphs

1. through 25 of the findings of fact in the recommended order.

COPIES FURNISHED:

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Karen Lessard, Esquire

15 West LaRua Street Pensacola, Florida 32501

Stephen W. Metz, Esquire Messer, Vickers, Caparello, French and Madsen

Post Office Box 1876 Tallahassee, Florida 32302

Docket for Case No: 86-004014

Orders for Case No: 86-004014