STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXIE YOUNG, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5570

) SCM ORGANIC CHEMICALS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 19, 1988, in Jacksonville, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Reese Marshall, Esquire

210 West Union Street Jacksonville, Florida 32302

For Respondent: T. Geoffrey Heekin, Esquire

Commander, Legler, Werber, et al. Post Office Box 240 Jacksonville, Florida 32201-0240

BACKGROUND

This case arises out of a charge of race discrimination against Respondent, SCM Organic Chemicals, filed by Petitioner, Maxie Young, with the Florida Commission on Human Relations (Commission) in January, 1986. On August 26, 1987, after conducting an investigation, the Commission issued a Notice of Determination finding that there was reasonable cause to believe that an unlawful employment practice had occurred. After efforts to conciliate the complaint were unsuccessful, Petitioner filed a Petition for Relief with the Commission 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 on his own behalf, and offered three exhibits which were accepted into evidence. Respondent presented the testimony of Ricky T. Williams, Samuel Brown, Norman C. Graham, Reuben Stewart, Daniel Galleri, Raymond Harper, David Brook, John Bailey, and William Singletary, and offered seven exhibits into evidence, of which exhibits numbered 1-5 were accepted and 6 and 7 were rejected.

After the hearing, both parties filed proposed recommended orders containing findings of fact and conclusions of law. The proposed findings of fact are addressed in the Appendix attached to this Order.

ISSUE

Whether Respondent committed an unlawful employment practice?

FINDINGS OF FACT

1. Petitioner, Mr. Young, is a black male. From May 8, 1980 until September 20, 1985, Petitioner was employed by PCR, Inc., in Gainesville, Florida.

   
   

2. PCR, Inc., is a chemical manufacturing company which mixes and manufactures some of the most toxic chemicals that exist at its Gainesville plant. In September, 1985, PCR, Inc. was owned by SCM Organic Chemicals.

   
   

3. Petitioner was first employed by PCR, Inc., in May, 1980 as a maintenance helper and was subsequently promoted to maintenance mechanic. The maintenance department at the plant had seven employees, including Petitioner, who was the only black.

   
   

4. Respondent followed a practice of documenting meetings between supervisors and employees concerning disciplinary matters and employee reprimands by memorandums written by the supervisors. Also, employees were counselled by supervisors in an informal manner where no memorandums were written.

   
   

5. Prior to December, 1984, Petitioner had only been counselled or reprimanded regarding his work performance one time. The reprimand was for a one-day unexcused absence from work following four days of vacation.

   
   

6. Sometime in October, 1984, Mr. Singletary became the supervisor of the maintenance department at PCR's plant in Gainesville. As such he was Petitioner's immediate supervisor. Mr. Singletary had worked for Respondent for over 20 years in Respondent's Jacksonville plant, where he had moved up through the ranks to become second in command in the maintenance department. In Jacksonville, Mr. Singletary had a reputation of being a tough, but fair supervisor who was concerned with "getting the job done," and who treated his coworkers and those he supervised equally, regardless of their race.

   
   

7. One of Mr. Singletary's first duties upon becoming maintenance supervisor in the Gainesville plant was to review the personnel files and attendance records of the maintenance department employees. From this review, it appeared to Mr. Singletary that Petitioner had been abusing the sick leave privilege.

   
   

8. After consulting with Mr. Pitrolo, the plant superintendent at the time, Mr. Singletary and Mr. Pitrolo met with Mr. Young on December 4, 1985. At the meeting, Mr. Singletary showed Mr. Young his attendance record and decided to extend the time for the yearly review of Mr. Young's performance. The substance of the meeting was memorialized in a memorandum dated December 4, 1988, written by Mr. Singletary, as follows:

   
   

   This is to document our meeting and

   its conclusion we had December 4, 1984. I went over your work record and you have thoroughly abused the time off with pay segment of our working agreement.

   You are hereby not awarded a yearly

   review but instead it will be extended until 15 months. You will also be placed on probation for a period of three (3) months starting 12/05/84 and ending 03/05/85. Any further violations as we discussed will end in termination.

   
   

   The problem is definitely not with your work, however, its being at work.

   
   

9. In early 1985, Mr. Singletary implemented a four day work week, ten hours per day work schedule for the maintenance department employees. Mr. Singletary received reports that Mr. Young was telling other plant employees that he would receive overtime pay for the extra two hours of work per day. This became a concern to Mr. Singletary, since it was not true, and he did not want other employees to think that the maintenance department employees were receiving preferential treatment. On February 9, 1988, Mr. Singletary met with Petitioner and Petitioner denied he was making comments regarding the overtime pay. Mr. Singletary felt Petitioner was lying and instructed him to stop spreading rumors.

   
   

10. Sometime in late February or early March, 1985, Petitioner was arrested for driving under the influence. After his arrest, Petitioner started telling people at the plant, including Mr. Pitrolo, that his intoxication had been caused by the chemicals present at the plant. Mr. Pitrolo told Petitioner that if he had a problem he should talk to his immediate supervisor, Mr. Singletary, and not make comments to other people in the plant. Instead of talking with Mr. Singletary, Petitioner continued to talk with others at the plant.

    
    

11. Because Petitioner continued to talk about the intoxication to others, in violation of Mr. Pitrolo's instruction to talk with Mr. Singletary, another meeting was held between Petitioner, Mr. Singletary and Mr. Pitrolo, on March 5, 1988. Petitioner denied he was telling others that his intoxication was caused by the chemicals, but Mr. Singletary did not believe him. Petitioner was told to stop spreading rumors and to follow the chain of command if he had a problem.

    
    

12. In early April, 1985, Petitioner was convicted of driving under the influence and sentenced to serve a 6-month jail term.

    
    

13. Also, in April, 1985, Mr. Bailey became plant supervisor of the PCR, Inc., plant in Gainesville. He had previously been interim plant manager from May to September, 1984.

    
    

14. After Petitioner's conviction, the Department of Corrections asked if Petitioner could return to his job at PCR, Inc., so he could be placed on a work release program instead of serving the 6-month sentence in jail.

    
    

15. After consulting with Mr. Singletary, and reviewing Petitioner's personnel file, Mr. Bailey decided to allow Petitioner to work at the plant on the work release program.

    
    

16. Petitioner started back at work on April 22, 1985. On that date, Mr. Singletary met with Petitioner to discuss the work release program and to let Petitioner know he was on "thin ice with the company."

17. On April 26, 1985, Mr. Bailey and Mr. Singletary met with Petitioner. Mr. Bailey had reviewed Petitioner's personnel file and had seen all the memorandums in the file which had been written as a result of past counselling sessions. Mr. Bailey showed all the memorandums to Petitioner and asked him if he understood them and Petitioner said yes. Petitioner signed all the memorandums in the file. Mr. Bailey explained to Petitioner that if he had a problem, he should speak to Mr. Singletary. Also, Petitioner was told that being disruptive in the plant was bad and could cause operators to do something wrong. Petitioner was told that any further acts of a disciplinary nature would result in immediate termination.

    
    

18. Approximately one month later, Mr. Bailey during his walks through the plant, began receiving reports that Petitioner was disgruntled, was complaining to other employees about the work he had to do, and was slow in completing work assignments. Reportedly, Petitioner would accuse the operators of breaking the machines on purpose. Mr. Bailey spoke with Petitioner informally during walks through the plant and told Petitioner to stop being disruptive.

    
    

19. However, the number of people complaining about Petitioner's comments increased and things reached a point where operators told Mr. Bailey and Mr. Singletary that they did not want to turn in work orders because they were concerned about the comments Petitioner would make.

    
    

20. Mr. Bailey, concerned with plant safety, consulted with Mr. Singletary and they decided that they had enough and would terminate Petitioner.

    
    

21. On September 20, 1985, Mr. Singletary and Mr. Sauer, the personnel officer, met with Petitioner and explained to Petitioner that he was being terminated. The reasons given to Petitioner for his termination were poor performance, attitude and not being a team player.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. 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. 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).

    
    

24. 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).

    
    

25. 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 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.

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

    
    

26. 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 similarly situated employees who were outside the protected class. Petitioner presented no credible evidence which showed that other employees were treated differently than Petitioner. Petitioner's only assertion of discrimination is that he had encountered no problems prior to Mr. Singletary becoming his supervisor. Therefore, the problems he had after Mr. Singletary became his supervisor were caused by Mr. Singletary's being guilty of discrimination. This assertion, without more, is not sufficient to establish a prima facie case of discrimination.

    
    

27. Even if Petitioner had been able to establish a prima facie case, other than by showing that similarly situated employees outside the protected class were treated differently, Respondent articulated a legitimate reason for discharging Petitioner. The articulated reason was that Petitioner became a disruptive force at the plant. Petitioner did not offer any evidence to show that Respondent's articulated reason was a pretext for discrimination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final

Order dismissing the Petition for Relief filed in this case.

DONE and ENTERED this 7th day of July, 1988, in Tallahassee, Florida.

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 7th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5570

The parties submitted proposed findings of fact which are addressed below.

Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact

Proposed Finding

Respondent's Proposed Findings of Fact Proposed Finding

of Fact Number Ruling and RO Paragraph

1. First sentence accepted. RO2. Second sentence rejected; no evidence was presented about when PCR, Inc. was sold.

2. Generally accepted. RO2.

3. Supported by competent evidence but unnecessary to the decision reached.

4. Accepted. RO1 and 3.

5. First four sentences accepted. RO6. Last two sentences are supported by competent evidence but are unnecessary to the decision reached.

6. Supported by competent evidence but unnecessary to the decision reached.

7. Accepted generally. RO5.

8-12. Accepted generally. RO6.

13-20. Supported by competent evidence but

unnecessary to the decision reached.

1. Accepted generally. RO4.

2. Accepted, except last sentence which is rejected. RO5.

3. Accepted, except second sentence. RO7. Second sentence rejected as not supported by competent evidence.

24-25. Accepted. RO9.

1. Accepted. RO10,11.

2. First sentence accepted. RO12. Rest of paragraph is supported by competent evidence but is unnecessary to the decision reached.

3. Accepted generally. RO14,15.

4. Accepted. RO16.

5. Accepted. RO17.

6. Generally accepted. RO18.

7. Generally accepted. RO18.

8. Generally accepted. RO20.

9. Generally accepted. RO18.

10. Generally accepted. RO19.

11. Accepted. RO20.

12. Accepted. RO21.

13. Rejected as irrelevant.

14. Rejected as not a finding of fact, but a recitation of testimony.

15. Not a finding of fact. See conclusions of law portion of the RO.

16. Supported by competent evidence.

42-43. Not a finding of fact. See conclusions of law portion of the RO.

COPIES FURNISHED:

Reese Marshall, Esquire

210 West Union Street Jacksonville, Florida 32202

T. Geoffrey Heekin, Esquire Commander, Legler, Werber, Dawes, Sadler & Howell

Post Office Box 240 Jacksonville, Florida 32201-0240

Donald A. Griffin Executive Director

325 John Knox Road Building F, Suite 240

Tallahasee, Florida 32399-1925

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Ms. Sherry B. Rice, Clerk

Florida Commission on Human Relations Suite 240, Building F

325 John Knox Road

Tallahassee, Florida 32399-1570

Docket for Case No: 87-005570

Orders for Case No: 87-005570