STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS S. SIMMONS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4236

) EASTERN AIRLINES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 11, 1988, in Tallahassee, Florida, before Jose Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis S. Simmons, pro se

4400 Bright Drive

Tallahassee, Florida 32303

For Respondent: Michael F. Coppins, Esquire

Douglas, Cooper, Coppins & Powell

211 East Call Street Tallahassee, Florida 32302-1674

BACKGROUND

This case arises out of a charge of race discrimination against Respondent filed by Petitioner with the Florida Commission on Human Relations (Commission) on June 30, 1986. On August 26, 1987, after conducting an investigation, the Commission issued a Notice of Administrative Finding that there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner then filed a timely Petition for Relief and the Commission requested the assignment of a hearing officer to conduct further proceedings and submit a recommended order to the Commission.

At the hearing, Petitioner testified in his own behalf, presented the testimony of Cedric W. Bennett and Roderick Whitehurst, and offered six exhibits which were accepted into evidence. Respondent presented the testimony of Fred

1. White, Charles C. Gibbons, Bob Stillwell, and Ann K. Bell and offered ten exhibits which were accepted into evidence.

   
   

   After the hearing, Respondent filed a proposed recommended order containing findings of fact and conclusions of law. The proposed findings of fact are addressed in the Appendix attached to this Order. Petitioner did not file a post-hearing statement.

   ISSUE

   
   

   Whether the Respondent committed an unlawful employment practice?

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant, Petitioner, Mr. Simmons, was an employee of Respondent. Mr. Simmons was employed as a "ramp serviceman" in Tallahassee, Florida. His responsibilities included loading and unloading passenger baggage from airplanes.

      
      

   2. Mr. Simmons is black.

      
      

   3. On the evening of June 17, 1986, Mr. Simmons was working a shift which began at 5:00 p.m. and ended at 1:00 a.m. on June 18, 1986.

      
      

   4. While unloading passenger baggage from a plane in the early evening of June 17, 1986, Mr. Simmons and a coworker, Mr. Curtis, found a blue jacket.

      
      

   5. Mr. Wilkowsky, another coworker, took the jacket to Respondent's office in the terminal building and hung it up.

      
      

   6. Respondent has a policy for dealing with found property which requires that the person finding property complete an "Article Lost Found Report." If the person finding the property cannot complete the Report, the shift manager or another supervisor will complete the Report. In this case, a Report was not completed regarding the blue jacket. Who had responsibility for completing the report cannot be determined from the evidence presented at the hearing.

      
      

   7. Later that evening, Mr. Gibbons, an operations manager with Respondent, heard Mr. Simmons and Mr. Wilkowsky taking in an adjacent room about how something fit each of them. When Mr. Gibbons looked in the room, Mr. Simmons was wearing a dark blue, double-breasted jacket which seemed to fit.

      
      

   8. Around midnight on the night of June 17-18, 1986, Mr. Simmons went looking for his supervisor, Mr. Stillwell, the shift manager. Mr. Simmons was going to tell Mr. Stillwell that he was going to take the blue jacket to get it cleaned. Mr. Simmons did not find Mr. Stillwell.

      
      

   9. Mr. Simmons, without informing any of Respondent's employees, took the jacket with him when he left work.

      
      

   10. The next morning, Mr. Simmons took the jacket to the cleaners and returned the jacket to Respondent at approximately 1:30 p.m. on June 18, 1986.

       
       

   11. Respondent has a policy prohibiting the unauthorized removal of Respondent's property or a customer's property from Respondent's premises. Prior to removing a customer's property from the premises, an employee must receive written authorization from a member of management. In June 1986, and for a number of years prior to 1986, employees removing property from

       Respondent's premises without authorization were subject to immediate dismissal, regardless of seniority, prior record, or position within the company.

       
       

   12. Respondent's policy concerning unauthorized removal of property from Respondent's premises had been extensively disseminated to all employees. The dissemination consisted of a statement contained in the Employee Handbook which

       all new employees receive, of memorandums posted in bulletin boards, and of memorandums mailed or hand delivered to all of Respondent's employees.

       
       

   13. When Ms. Bell, Respondent's station manager in Tallahassee in June 1986, found out that a customer's jacket had been reported missing and that Mr. Simmons had taken the jacket off the premises, she initiated an investigation to determine what had happened. After completing the investigation and determining that Mr. Simmons had not left a note nor informed any of Respondent's employees that he was taking the jacket, Ms. Bell decided to discharge Mr. Simmons for violating the company's policy regarding the unauthorized removal of customer's property. Mr. Simmons was discharged on June 20, 1986.

       
       

   14. Charles Updegraff, a white employee with Respondent was discharged after being reprimanded six times due to customer complaints. His discipline was handled under Respondent's progressive discipline policy, and none of Mr. Updegraff's infractions were of the type subject to immediate discharge.

       
       

   15. Mr. Curtis, a black employee with Respondent made a large number of unauthorized long distance calls. He was not discharged but was required to pay the Respondent for the telephone calls. Under Respondent's policies, this infraction may result in a discharge, but it is not an infraction for which immediate discharge is mandated.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

       
       

   17. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discharge an individual because of such individual's race or color.

       
       

   18. In determining whether an unlawful employment practice has occurred, Florida courts have looked for guidance to federal cases under Title VII of the Civil Rights Act of 1964, 46 U.S.C. Section 2000e, et. seq. See School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1987).

       
       

   19. In a discrimination case, Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the disparate treatment. Should Respondent carry this burden, the Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 412 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981).

       
       

   20. Generally, a prima facie case of discrimination, is established by presenting evidence which "raises an inference of discrimination only because we presume these acts, if otherwise unexplained are more likely than not based on the consideration of impermissible factors." Id. 412 U.S. at 254, 101 S.Ct. at 1094. In a case dealing with a discharge from employment, the Petitioner must show that: (a) he is a member of a protected class, (b) he was discharged from a job for which he was qualified, and (c) he was treated differently from similarly situated employees outside the protected class. See, Johnson v. U.S.

       Steel Corp., 629 F.2d 436, 440-441 (3d. Cir. 1980); McDonnell Douglas Corp. v.

       Green, 441 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1983).

       
       

   21. In this case, Petitioner has failed to establish a prima facie of discrimination. Clearly, he is a member of a protected class and he was qualified to do the job from which he was discharged. However, he has failed to show by a preponderance of the evidence that he was treated differently than other employees who were outside the protected class.

       
       

   22. Petitioner was discharged for committing an act which Respondent considers one of the most serious infractions of its work rules, i.e., the unauthorized removal of a customer's property from the premises. The evidence in this case shows that Petitioner committed the act for which he was discharged. Additionally, the evidence shows that Respondent's consistent policy is to discharge employees who commit such an infraction of work rules. Petitioner failed to produce any evidence that Respondent had at any time failed to discharge another employee for committing the same infraction.

       
       

   23. Petitioner's evidence as to the issue of disparate treatment consisted of testimony that two other employees violated Respondent's work rules and were not discharged. However, the infractions committed by the two other employees were not, from the Respondent's perspective, as serious as the infraction committed by Petitioner, and were not infractions for which immediate termination was the penalty.

       
       

   24. While Petitioner may not feel that the infraction he committed is very serious, Respondent clearly believed it to be so, and communicated the policy to all its employees. This case is not about reviewing the correctness of Respondent's policies. The case is about determining whether Petitioner was treated by Respondent in a discriminatory manner because of his race. This Respondent did not do.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations issue a Final Order dismissing the Petition for Relief filed in this case.

JOSE A. DIEZ-ARGUELLES

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 June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4236

The Respondent submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ."

Respondent's Proposed Findings of Fact

COPIES FURNISHED:

Dennis S. Simmons 4400 Bright Drive

Tallahassee, Florida 32303

Michael F. Coppins, Esquire Douglas, Cooper, Coppins & Powell

211 East Call Street Tallahassee, Florida 32302-1674

Donald A. Griffin Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Sherry B. Rice, Clerk Human Relations Commisson,

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 87-004236

Orders for Case No: 87-004236