STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY MELTON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4132

) RUSSELL CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marianna, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 23, 1988. The parties are represented as follows:

APPEARANCES

For Petitioner: Shirley Melton, pro se

Star Route Box 98 Gordon, Alabama 36343

For Respondent: Carol Sue Nelson, Esquire

CONSTANGY, BROOKS & SMITH

1015 First National Southern Natural Building Birmingham, Alabama 35203

The issue addressed in this proceeding is whether petitioner has been the victim of an unlawful employment practice as defined in Chapter 760, Florida Statutes.

At the hearing, petitioner, Shirley Melton, testified in her own behalf.

Respondent presented the testimony of Carolina Myrick, Carol Hall, Doris Durden, Steve Waranoff and Claude Nall, and offered 12 exhibits.

The parties filed proposed recommended orders on April 15, 1988 and April 12, 1988, respectively. Petitioner's and Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Russell Corporation, has a plant located in Marianna, Florida. The work done at the Marianna plant consists of sewing pre-cut cloth into a finished garment.

2. Shirley Melton is a middle-aged black woman who had been employed at Russell Corporation's, Marianna, Florida plant for 4 years as a sewing machine operator. She was one of the plant's best workers and until this incident, her supervisors had never had any trouble with her.

   
   

3. On September 30, 1985, Ms. Melton filed a discrimination complaint against Russell Corporation, alleging that Respondent had discriminated against her on the basis of her race. The charge was based on the fact that Ms. Melton did not receive a sewing job she was interested in. The sewing position she sought was a temporary job. Ms. Melton did not know the job was temporary. While the job was originally discussed with Ms. Melton, the decision was made to place Clarice Moats, a white woman in the temporary job. Ms. Moats was chosen because (1) her original job had been eliminated; (2) she had more seniority;

   (3) little training was required because her prior job was similar; and (4) Ms. Melton was currently in a permanent job. The Human Relations Commission found no probable cause in Ms. Melton's complaint and took no further action regarding the complaint.

   
   

4. After that date, but before July 16, 1986, Ms. Melton had gotten in a personal dispute with Carolina Myrick. The dispute was outside of work and did not relate in any way to work. Carolina Myrick was a quality control inspector for Russell Corporation and was related to Ms. Melton.

   
   

5. On July 16, 1986, Ms. Melton and Ms. Myrick had worked most of the day without incident. However, beginning about 3:55 p.m., Ms. Melton learned that Ms. Myrick had "red tagged" a bundle of items she had sewn. A red tagged bundle is a bundle of sewn items which have not passed the quality control inspection Ms. Myrick performs on the bundle. Ms. Myrick then returns the rejected bundle to the appropriate employee's supervisor. A red tagged bundle can subject an employee to disciplinary action if the employee receives too many red tags. In this instance, Carol Hall was the floor supervisor over Ms. Melton. Ms. Melton went to see Carol Hall about the bundle "all the women on the line were talking about." While walking to Ms. Hall's desk, she passed Ms. Myrick and stated that she was going to whip Ms. Myrick's tail if she got another red tagged bundle. Upon arriving at Ms. Hall's desk, Ms. Hall informed Ms. Melton that it was her bundle that had been tagged. Ms. Melton left Ms. Hall's desk and began to walk out of the building since the quitting bell had rung. Ms. Melton was quite upset about the red tagged bundle. She believed Ms. Myrick was picking on her because of their earlier personal disagreement. Ms. Melton was in front of Ms. Myrick on the way out when she turned and said that she was an old witch and that "the Lord took the wrong one, it should have been you," referring to Ms. Myrick's sister Christine McGriff, who had suddenly and unexpectedly died of encephalitis a few weeks earlier.

   
   

6. Ms. Myrick became upset over Ms. Melton's words and complained to the supervisor, Carol Hall. Carol Hall then took Ms. Myrick in to speak with Doris Durden, the floor supervisor. Ms. Durden then went to talk to Claude Nall, the plant manager. All three people believed that Ms. Melton's action was unusually cruel and it was their policy not to allow such behavior in the plant, particularly where a quality control person was involved. All three individuals testified that they had never had such extreme language used in the plant. The next day, Ms. Melton was suspended, pending an investigation. After a full investigation, during which Ms. Melton admitted making the above statements, it was decided to terminate Ms. Melton for gross insubordination towards a fellow employee and willful verbal abuse by making degrading remarks about the employee's job performance and about her family. It was the willful aspect of this misconduct which formed the basis for the discharge. At the time the

   termination was decided, Mr. Nall, the plant manager, did not even know about Ms. Melton's earlier complaint, because he had been transferred to the Marianna plant sometime after the earlier complaint had occurred. The decision to terminate was reviewed and approved by the personnel office in Alexander City, Alabama. Ms. Melton was formally terminated on July 21, 1986.

   
   

7. Ms. Melton instituted the review proceedings the plant had established for employee disciplinary actions taken by plant supervisors. She appeared before a review board consisting of four (4) people from various other corporate offices and plants. The hearing was held on July 29, 1986. At the hearing, Ms. Melton again admitted making the alleged statements. However, even in the face of these admissions, Ms. Melton, at the hearing, maintained she never said she "would whip Ms. Myrick's tail." Respondent presented sufficient evidence to show that Ms. Melton's denial is incorrect.

   
   

8. Ms. Melton asserted at the hearing that there were other incidents of a similar nature at the plant for which termination was not the end result. However, she presented no evidence, other than uncorroborated hearsay, that such incidents had in fact occurred. The witnesses called by Respondent flatly denied that any similar incidents had ever occurred which would be comparable to the extreme nature of Ms. Melton's conduct. Other than these hearsay statements by Ms. Melton, there was absolutely no evidence presented that Respondent discriminated against Ms. Melton in retaliation for her earlier filed discrimination action. Ms. Melton had the right to subpoena the persons involved in the allegedly similar conduct to testify to those matters. However, she did not exercise her right to do so.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

10. Respondent is an employer within the meaning of Section 760.02, Florida Statutes, the Florida Human Rights Act of 1977.

    
    

11. Section 760.10, Florida Statutes, reads in pertinent part:

    
    

    It is an unlawful employment practice for an employment agency, a joint labor- management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

12. Petitioner, Shirley Melton, has the burden of proving by a preponderance of the evidence that Russell Corporation retaliated against her for her earlier discrimination complaint. Chapter 760, Florida Statutes. See In Re School Board of Pinellas County v. Rateau, 449 So.2d 839 (Fla. App. 1st Dist. 1984) and Hudson v. Affiliated of Florida, Inc., 8 F.A.L.R 643 (1986)

    which adopt the Title VII order and allocation of proof under McDonnell Douglas

    v. Green, 411 U.S. 792 (1973) and Burdine v. Texas Department of Community Affairs, 450 U.S. 248 (1981).

    
    

13. To establish a prima facie case of retaliation, petitioner must prove that (1) she engaged in a protected activity; (2) she was subjected to an adverse employment decision and (3) there is a causal connection between (1) and (2). See, Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982) construing Title VII.

    
    

14. Petitioner herein engaged in a statutorily protected activity by filing a charge of discrimination against Respondent on or about September 30, 1985.

    
    

15. Additionally, Petitioner was subjected to an adverse employment decision by being terminated.

    
    

16. However, in this action Petitioner failed to establish a prima facie case of retaliatory discharge. While petitioner had filed a charge of discrimination approximately one year prior to her termination, she failed to establish a causal connection between her earlier charge and her termination. A causal connection may be shown if an employer treats an employee differently after learning that the employee has engaged in a protected activity. No credible evidence was presented on this point and the length of time between the earlier discrimination charge and the alleged retaliation would require some evidence of different treatment. See Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir. 1982).

    
    

17. It is within the discretion of the corporation to develop its policy regarding the conduct of its employees and the consequences of their conduct on employment. While others might not have been as harsh in the punishment of Ms. Melton for mere words, it is not an issue under consideration in this proceeding. The issue here is whether an unlawful employment practice has occurred in that a prohibited form of discrimination has been committed by Russell Corporation. There is simply no evidence to support such a determination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition against respondent, Russell Corporation, be

dismissed.

DONE AND ORDERED this 6th day of May, 1988, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 6th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4132

Petitioner did not number her paragraphs in her recommended order. I, therefore, have numbered the paragraphs in her recommended order sequentially and utilize those numbers in this appendix.

Petitioner's proposed finding of fact contained in paragraph 1, have been adopted, in so far as material, except the finding regarding Ms. Melton having more experience and the finding regarding retaliation. The evidence did not show these two (2) facts.

Petitioner's proposed finding of fact in paragraph 2, have been adopted, in so far as material, except the evidence did demonstrate Ms. Melton said that she would whip Ms. Myrick's tail... and had admitted saying such at least two (2) times prior to the hearing. Because of the prior admissions the evidence demonstrated more than just a swearing match between Ms. Myrick and Ms. Melton.

Petitioner's proposed finding of fact contained in paragraph 3 have been adopted as to the admissions. The rest of paragraph 3 is immaterial and uncorroborated hearsay

Petitioner's proposed finding of fact contained in paragraph 4 are immaterial and evidence demonstrated admissions by Petitioner.

Respondent's proposed finding of fact numbers 1, 4, 6, 9, 10, 11, 13, 22, 24, 25, 26 and 27 have been adopted, in substance, in so far as material.

Respondent's proposed finding of fact number 2 was not shown by the evidence.

Respondent's proposed finding of fact number 3 have been adopted, in substance, except the last sentence in paragraph 3, which was not shown by the evidence.

Respondent's proposed finding of fact number 5 have been adopted, in substance, except evidence showed Ms. Melton's initial statement to Ms. Myrick was on her way back to supervisor's desk and not outside work area.

Respondent's proposed finding of fact numbers 7, 8, 16 and 28 are immaterial.

Respondent's proposed finding of fact number 12 have been adopted, in substance, except for leaving work area.

Respondent's proposed finding of fact number 14 is immaterial, except as facts relate to one of Ms. Melton's admissions.

Respondent's proposed finding of fact number 15 is immaterial, except as facts relate to one of Ms. Melton's admissions.

Respondent's proposed finding of fact numbers 17, 18, 19, 20, 21 and 23 are subordinate.

COPIES FURNISHED:

Shirley Melton Star Route Box 98

Gordon, Alabama 36343 Carol

Sue Nelson, Esquire CONSTANGY, BROOKS & SMITH

1015 First National Southern Natural Building Birmingham, Alabama 35203

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Margaret Agerton, Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 87-004132

Orders for Case No: 87-004132