STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. MATSON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4318

)

GENERAL CINEMA BEVERAGES )

OF NORTH FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 23, 1990 in Palatka, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Robert L. Matson, pro se

1214 Olive Street

Palatka, Florida 32177

FOR RESPONDENT: Mark N. Woyar, Esquire

as Qualified Representative Ross & Hardies

150 North Michigan Avenue Suite 2500

Chicago, Illinois 60601 STATEMENT OF THE ISSUES

Whether or not Respondent has committed an unlawful employment practice by discrimination in employment and by termination of Petitioner due to his race and/or in retaliation for filing charges of discrimination with the federal Equal Employment Opportunity Commission.

PRELIMINARY STATEMENT

Following a June 16, 1989 Determination of "No Cause" by the Florida Commission on Human Relations, Petitioner Matson filed his Petition for Relief from an Unlawful Employment Practice with that agency on July 26, 1989. The Commission transmitted the Petition to the Division of Administrative Hearings and also notified Respondent General Cinema Beverages of the filing of the Petition on August 9, 1989.

This cause was first noticed by the undersigned on September 14, 1989 for formal hearing on November 9, 1989. On October 19, 1989, Respondent's out-of- state attorneys moved for continuance due, in part, to having just been

retained. The unopposed motion for continuance was granted by an order entered November 1, 1989, which order also noted that Respondent had filed no Answer to the Petition.

At the opening of the rescheduled formal hearing on January 23, 1989, Illinois attorney Mark N. Woyar and Respondent Corporation's Employee Relations Manager, James F. Babbitt, who was authorized to speak on behalf of the Respondent Corporation, were examined on the record, and the undersigned accepted Mark N. Woyar as Respondent's "Qualified Representative" pursuant to Rule 28-5.1055 F.A.C.

The undersigned also sua sponte asked Respondent to show cause why Respondent should not be deemed to have admitted the material facts alleged in Matson's Petition since Respondent had failed to timely file its answer to the Petition for Relief as required by Rule 22T-9.008(5) F.A.C. After being advised that an answer had been untimely filed with the Division of Administrative Hearings on January 19, 1990, and after hearing oral argument by both parties, an oral order was entered, upon authority of Bates v. School Board of Alachua County, 10 FALR 4649 (1988), and Arnold v. Burger Queen System, Inc., 8 FALR 3606 (1986), permitting Respondent's late-filed answer to stand, ruling that the Petition's allegations were not deemed admitted, and further ruling that if Respondent chose to do so, Respondent might present evidence at formal hearing to rebut Petitioner's case-in-chief. See also, Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2nd DCA 1989).

Respondent's Answer also contained several affirmative defenses. One affirmative defense raised was to the effect that Matson's Petition for Relief had itself been untimely filed pursuant to Rule 22T-9.008(1) F.A.C. and should therefore be dismissed. Accordingly, that threshold issue was treated as a motion to dismiss and was addressed by the undersigned at the opening of formal hearing. The file reflects that Matson's Petition for Relief, due to be filed under the rule by July 21, 1989, was not filed with the Florida Commission on Human Relations until July 26, 1989. See supra. However, Respondent admitted that it had filed no separate motion to dismiss, timely or otherwise.

Therefore, upon authority of Clark v. Department of Corrections, DOAH Case NO. 85-1683, (July 30, 1985), 8 FALR 679 (1985), the affirmative defense was struck, and Matson's Petition was not dismissed. Respondent's remaining affirmative defenses are addressed in this Recommended Order's Conclusions of Law, infra.

Petitioner testified on his own behalf and presented the oral testimony of Richard Van Wormer. Petitioner offered in evidence Exhibits P1-26 and had admitted in evidence P1-20 and P25-26. (It is noted that the index to the transcript does not accurately reflect the admission of certain exhibits.)

At the close of Petitioner's case-in-chief, Respondent moved to dismiss.

The motion was denied.

Respondent presented the oral testimony of James F. Babbitt and Richard Van Wormer and had admitted Exhibits R-1-3, 5-7, 10-12, and 14. The intervening numbers were not offered or admitted.

Respondent filed the transcript of proceedings on February 16, 1990.

Petitioner's timely-filed proposed findings of fact have been ruled on in the Appendix hereto, pursuant to Section 120.59(2) F.S.

Respondent's proposed findings of fact and conclusions of law were filed April 2, 1990. This was untimely under the March 20, 1990 order extending the time for filing same to March 30, 1990, and Respondent's proposals are hereby struck.

FINDINGS OF FACT

1. Petitioner is a Black adult male. At all times material he was employed by Respondent General Cinema Beverages of North Florida, Inc.

   
   

2. Petitioner was hired by Respondent on July 30, 1981. His good overall performance earned him promotions from checker/loader, to sales department employee, to night warehouse supervisor, and he was considered an excellent employee over approximately six years, until midway in 1987. His promotion to the position of night warehouse supervisor had been recommended by Richard Van Wormer, who was Petitioner's immediate "boss" from the date of that promotion until Petitioner's termination on July 8, 1988.

   
   

3. Upon assuming the position of night warehouse supervisor, Petitioner was the only Black employed in middle management in Respondent's Palatka branch office. Effective with his promotion to this position, Petitioner was in an "exempt or salaried position" pursuant to the federal Fair Labor Standards Act, Wage and Hour Laws and regulations, and therefore Petitioner was not paid at an hourly rate. Nonetheless, the employer, through Mr. Van Wormer, required that Petitioner still punch in upon arrival and punch out upon departure, using the same time clock as was used by "nonexempt or hourly wage employees" who were paid by the hour.

   
   

4. This requirement that Petitioner clock in and out as if he were a wage- earner was not imposed upon the White day warehouse supervisor. The initial explanation given the Petitioner for this disparate treatment was that Petitioner's time card was used for "productivity purposes." Later, when Petitioner responded to Mr. Van Wormer's assessment against him of repetitive tardiness by complaining about the disparate treatment with regard to time cards of himself and the remaining "exempt, salaried" personnel, all of whom were White, Mr. Van Wormer explained further that he, Van Wormer, could be present during the daylight shift to personally monitor the managerial employees on the day shift, but he had to have some other impartial way to monitor Petitioner, who was in full charge of the warehouse premises during the night shift. It is unrefuted that Mr. Van Wormer usually had already left the premises by 3:00 p.m., which was the time the Petitioner was required to arrive on the job.

   
   

5. At formal hearing, Mr. Van Wormer testified credibly that on the night shift, even the supervisor (Petitioner) was sometimes required to help load trucks, and that situation required uniform monitoring by time card of Petitioner and all other night shift personnel because such a method permitted Van Wormer to assess warehouse productivity, that is, to determine how many hours it took all the night shift personnel together to load "X" number of cases.

6. Effective February 16, 1987, Respondent employer established a new tardiness/absenteeism policy. This policy provided for a series of increasing disciplines applicable to all employees for repeated tardiness or absenteeism. Petitioner acknowledged that he was made aware of this policy when it was adopted. The policy provided as follows:

   
   

   More than six instances of tardiness per calendar year is considered excessive. The following procedure will apply to cases of excessive tardiness.

   
   

   DAYS TARDY/ ACTION CALENDAR YEAR

   
   

   6th Day Employee receives written

   notification that he/she has been tardy a total of six days

   7th Day Documented verbal warning

   with copy to Personnel File

   8th Day Written reprimand with copy to Personnel File

   9th Day One day suspension without pay 10th Da Three day suspension without pay 11th Day Five day suspension without

   pay. Employee subject to termination.

   
   

7. Mr. Van Wormer, with the concurrence of the district office, agreed to excuse Petitioner for five tardy arrivals which were calculated according to the times Petitioner had personally punched in his time card during March 1987. The five tardies excused were March 3, 13, 16, 24, and 26, 1987. This accommodation was made by the Respondent employer due to some confusion about the division of monitoring duties between the employer's Palatka branch office and its Jacksonville district office and because it appeared that the Petitioner had not received the appropriate verbal warning and written reprimand, immediately after the seventh and eighth tardies, respectively.

   
   

8. However, on April 16, 1987, the Petitioner was given a written "verbal (sic) warning" for a seventh tardy accrued on April 14, 1987. In calculating the seventh tardy, the employer did not count the five tardies Van Wormer had previously excused. Seven new unexcused tardies were incurred by Petitioner on April 1, 3, 6, 9, 10, 13, and 14, 1987. (See, P-4, the accuracy of which was stipulated by the Petitioner.)

   
   

9. The Petitioner received a written reprimand for his eighth new tardy accrued on April 20, 1987.

   
   

10. On June 19, 1987 the Petitioner was assigned a suspension without pay for one day on July 1, 1987, due to a ninth new tardy. On September 16, 1987 the Petitioner received a three-day suspension without pay on September 28-30, inclusive, for his tenth new tardy. On November 27, 1987 Petitioner received a five-day suspension without pay for December 14-18, inclusive, due to his eleventh new tardy.

    
    

11. The Petitioner complained about how the tardiness policy was being implemented with regard to him, so the employer considered requiring all exempt employees to use a time clock. This proposed solution was met with resistance by the other exempt/salaried employees, and it still did not allow Mr. Van Wormer

    to check up on Petitioner during the time no senior manager could "eyeball" the Petitioner after 3:00 p.m. Therefore, as an alternative, and at Petitioner's request, the employer transferred the Petitioner from "exempt" to "nonexempt" status and began to pay him by the hour, but continued to require him to clock in with the time clock so that his tardiness, absences, and hours worked could all be simultaneously registered/monitored. This change occurred effective June 22, 1987.

    
    

12. The Petitioner asserted that during all of the foregoing period of time he had been using the time card punch-in system haphazardly, thinking it was intended solely for tracking "productivity" and that it was not intended to keep track of his tardy arrivals since he was not being paid by the minute/hour. For this reason, the tardies accrued against Petitioner up until June 22, 1987 when the Petitioner was reclassified as an hourly employee may have been erroneously total led by the employer. This alleged erroneous total, primarily occasioned by the Petitioner's failure to comply with his superior's directions to habitually clock in at the proper time, was the gravamen of the Petitioner's first complaint to the employer.

    
    

13. Pursuant to the tardiness policy initiated February 16, 1987, all employees were supposed to receive a clean record for tardies and absences effective each calendar year, beginning on January 1, 1988. However, effective midway into January 1988, all employees were notified that any employee already in the disciplinary process as of January 1, 1988 would be put on a "rolling calendar." This revision of the tardiness/absenteeism policy applied to all employees regardless of race. Its purpose, as credibly explained by Mr. Van Wormer and Mr. Babbitt, was due to management's January 1988 experience with a few employees who abused the system by running up multiple absences/tardies in January 1988 as soon as they perceived that their slates should have been cleared. James F. Babbitt, Employee Relations Manager, described the process of a "rolling calendar" as calculating the discipline twelve months back from the latest infraction, incorporating previous years, so that each respective employee's slate would not wipe clean automatically each January 1, but would wipe clean automatically only as soon as that employee had been without tardies for a full twelve consecutive months.

    
    

14. The Petitioner continued to complain aloud about being required to punch a time card, the number of tardies attributed to him thereby, and the failure of management to excuse all of the tardies recorded against him. Finally, after receiving no redress from management, Petitioner failed a written internal company complaint dated February 16, 1988 (P7A-C). This lengthy complaint primarily addressed how the tardiness policy was being implemented with regard to Petitioner and accused Mr. Van Wormer of harassing Petitioner due to Petitioner's being a potential witness in another racial discrimination case. The employer's response to this complaint was to retroactively excuse nine of the tardies assessed against the Petitioner in 1987. The tardies excused (April 1, 3, 6, 9, 10, 13, 14, 20, and June 19, 1987) were those accrued up through Petitioner's returning to hourly wages on June 22, 1987. This left only two tardies to be considered as still on Petitioner's record at the end of 1987. The effect of this accommodation was to remove the Petitioner from any immediate danger of termination for excessive tardiness and to permit him to acquire an additional five tardies before a verbal warning and nine tardies before he would again be in danger of termination for tardiness. This compromise result was documented by the employer in a memorandum dated March 8, 1988. The memorandum noted that the Petitioner had only three unexcused tardies on his record at that time. These tardies were September 16 and November 27, 1987 and a new one accrued March 3, 1988. The Petitioner was also informed in that memorandum that

    if he were to keep a completely clear record for 60 days, the employer would clear even his "roll-over" tardies from 1987 to 1988, but if he had one more unexcused absence within the 60-day period, the employer would continue with the progressive discipline schedule (P9-10). According to the testimony of Mr. Van Wormer, the Respondent employer took this course of action to resolve Petitioner's internal complaint and in consideration that there might have been monitoring discrepancies as discussed in Finding of Fact 12, supra. However, the employer did not see fit to go so far as to reimburse the Petitioner his pay which had been docked during the previous enforced suspensions. The Petitioner signified his disagreement/nonacceptance of the foregoing resolution by a return memo on March 10, 1988.

    
    

15. The Petitioner's two remaining tardies of September 16 and November 27, 1987, which occurred after he voluntarily gave up his exempt status and during a period when he had been clearly instructed to use the time clock for productivity, pay, and attendance purposes, were "rolled over" retroactively like those of all other disciplinary process employees. Since the Petitioner had already been suspended three times due to repeated tardiness, he was not excused from being considered to already be "in the disciplinary process" even though his unexcused tardies through June 22, 1987 had been absolved as part of the internal grievance resolution. See, Finding of Fact 14, supra.

    
    

16. In March 1988, the Petitioner also was sent by the Respondent employer to a five-day management training course as part of the Respondent's efforts to resolve conflicts with this employee. Notwithstanding his protestations to the contrary at formal hearing, the Petitioner clearly acknowledged in a letter dated March 29, 1988 that complaint resolution was one of the employer's reasons for providing him with additional training.

    
    

17. The Petitioner complained at formal hearing that he felt the employer's compromise resolution of his internal complaint was unfair, that he had not agreed to it, that he felt he should have been repaid his lost wages, or alternatively, his enduring the suspensions and lost wages in 1987 should have been deemed sufficient retribution by the employer for all eleven of his tardies accrued in 1987. The Petitioner did not deny that he was sometimes tardy, but seemed preoccupied with his perception that the tardiness policy had been unfairly applied to him, personally, due to the use of the time clock procedure and because he was not repetitively warned, verbally (sic) warned, reprimanded in writing, and sequentially suspended after the March 8, 1988 accommodation in perfect accordance with the steps set out in the tardiness policy. He also asserted that he was supposed to be granted a "grace period" of several minutes each day, but this was vehemently denied by Respondent's witnesses.

    
    

18. After the March 8, 1988 accommodation in excusing the nine tardies accrued prior to June 22, 1987, the Petitioner clocked in eleven more unexcused tardies in 1988, as follows: March 3, April 5, 25-27, May 9, June 27-29, July 1 and 6. There were other excused tardies in 1988.

    
    

19. Approximately twenty-four employees, both Black and White and district-wide, were already in the progressive disciplinary process when the revised "rolling calendar" policy came into effect, and so their tardies or absences were "rolled over" retroactive to January 1, 1988. There were three White employees and two Black employees (including Petitioner) in the Palatka branch office who fell in this "roll-over" category. The following Palatka employees fell into "roll-over" status: Zickfoose, Stephen, Hoffman, Allen, and Petitioner. Hoffman, Stephen, and Zickfoose are White. Stephen and Hoffman

    were managers and were paid salaries. Zickfoose was paid hourly. Petitioner and

    Allen are Black. Due to Petitioner's arrangement of June 22, 1987, he was paid hourly like Allen, although Petitioner was still considered "management." Hoffman, a White salaried employee, received a three-day suspension without pay upon his tenth tardy in 1987. Stephen, a White salaried employee, received a one-day suspension without pay upon his ninth tardy but was permitted to use one day of sick leave to offset the resultant loss of income. There is nothing to demonstrate that any similarly situated employee was treated any differently than Petitioner, regardless of his race.

    
    

20. Petitioner was notified (but not necessarily formally warned or reprimanded) on his sixth (April 26, 1988), seventh (April 27, 1988), and eighth (May 9, 1988) days of tardiness, and then he was tardy three days in a row:

    June 27, June 28, and June 29, 1988.

    
    

21. On June 30, 1988, Mr. Babbitt and Mr. Babbitt's superior in "Personnel" travelled from Jacksonville to Palatka to meet with Petitioner. They informed Petitioner that, having already accrued eleven tardies, he was subject to immediate termination if he were tardy one more time, but they did not assign any further discipline by way of suspending Petitioner without pay. This oral warning was reduced to writing and given to Petitioner on July 1, 1988. However, Petitioner was again tardy on July 6 and 8, 1988.

    
    

22. The Petitioner was not notified of his additional tardiness after the July 30, 1988 meeting and confirming memorandum, nor was he given additional suspensions without pay. He was, however, terminated for excessive tardiness effective July 8, 1988.

    
    

23. Respondent's witnesses concede that at various times the Petitioner threatened to file an Equal Employment Opportunity Commission (EEOC) claim against the employer, but they denied that they individually or on behalf of the Respondent ever received notification from that agency of any actually claim made by the Petitioner prior to their terminating him for tardiness on July 8, 1988. The Petitioner admitted that his EEOC complaint, sent somewhere on March

    19 or 20, 1988, must never have been completed to the stage of notification to the Respondent employer due to some unspecified problem with affidavits and one Mr. McTear's forwarding of the complaint to the Florida Commission on Human Relations. There is no competent credible evidence that the Petitioner filed a claim with the Florida Commission on Human Relations before he was terminated. Since there is no evidence any of the Respondent employer's managerial agents knew before Petitioner's termination of any EEOC claim being filed, if in fact it ever was filed, there is no credible evidence that the Respondent harassed or terminated the Petitioner in retaliation for filing an EEOC complaint. Although the Petitioner claimed also to have been harassed because he had been listed as a witness for the EEOC claim of one Pat Dallas sometime around February or March 1988, no independent evidence substantiates this allegation, and clearly, Petitioner was retained as an employee until July 8, 1988. Moreover, the very fact that at that at the time the Petitioner claimed he was filing EEOC charges of his own and being harassed because he had been listed as a witness in another EEOC case, the Respondent was completing internal complaint resolution procedures with Petitioner with regard to tardiness and was sending the Petitioner to management school on terms at least partially favorable to Petitioner. Such a chronology militates against any inference of harassment of the Petitioner by the employer.

    
    

24. There is no competent credible evidence of any harassment by the employer due to Petitioner's foot injury.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

26. The Respondent has raised as affirmative defenses not previously disposed of, the following: that Petitioner has failed to mitigate the damages and that the Petition fails to state a claim upon which relief may be granted. These affirmative defenses within the respondent's late-filed Answer were untimely filed and are inappropriate to this type of proceeding and are hereby struck.

    
    

27. Under the provisions of Section 760.10(1)(a) F.S. it is an unlawful employment practice for an employer:

    
    

    to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, natural origin, age, handicap, or marital status.

    
    

28. Subsection 8(e) of the same statute provides, however, that:

    
    

    This subsection shall not be construed to make unlawful the rejection or termination of employment when the individual applicant or employee has failed to meet bona fide requirements for the job or position sought or held .

    
    

29. When an individual alleges he is subjected to disparate treatment in employment because of his race, he has the initial burden of establishing, prima facie, a case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 US. 792 (1973). Once a complainant has done so, the burden of going forward then shifts to the employer to demonstrate a nondiscriminatory reason for the action complained of. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Where a legitimate, nondiscriminatory reason for the employer Respondent's actions is shown, the claimant then must establish and prove that the proffered reason was in fact "pretextual." Texas Department of Community Affairs v. Burdine, supra; Simmons

    v. Camden Board of Education, 757 F.2d 1187 (11th Cir. 1985), reh'g en banc den., 767 F.2nd 938 (11th Cir. 1985), cert. den. 106 S.Ct. 385 (1985). See also, Suson v. Zenith Radio Corp. 763 F.2d 304 (7th Cir. 1985). The same burden of proof applies in a claim of retaliatory discharge where there is no direct evidence of retaliation. See Doyal v. Marsh, 777 F.2d 1526 (11th Cir. 1983), and Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).

    
    

30. The elements of a prima facie case of retaliatory discharge are (1) that the claimant engaged in statutorily protected activity, (2) that there was an adverse employment action, and (3) that there was a causal link between the two. Doyal v. Marsh, supra.

31. Herein, the Petitioner has established a prima facie case of retaliatory discharge on the basis of race, but there is no evidence to support, by a preponderance of evidence or otherwise, that retaliation occurred as a result of the filing of an EEOC complaint.

    
    

32. With regard to the prima facie case of racial discrimination, the Respondent has presented adequate evidence to refute the prima facie case and to establish nondiscriminatory reasons for the use of the time clock with regard to the Petitioner, with regard to disciplining the Petitioner for excessive tardiness by successive suspensions without pay, and with regard to the ultimate discharge of the Petitioner for tardiness. Even conceding that some inequities may have existed due to the superior accuracy of assessing tardiness with a time clock over "eyeballing" arriving employees, and that retroactive application of a policy change or failure to repeatedly notice, warn, verbally warn, reprimand in writing, and suspend in policy- specified order may not be perfectly fair, there is no evidence of racial bias either in intent or application of the original or modified company tardiness policy and the employer's proffered reasons for the Petitioner's treatment by the Respondent do not appear in any way to be pretextual.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the complaint and Petition for Relief by Petitioner Robert L. Matson.

DONE and ENTERED this 11th day of May, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4318

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

PART I

1, 2 Accepted.

3,5 Subordinate and/or cumulative to the facts as found.

4 Accepted as to knowledge in Respondent of the policy, but otherwise subordinate and/or cumulative to the facts as found.

6,7,8,9 Rejected as mere argument.

DISCREPANCIES

Discrepancy #1 Accepted to the degree supported by the record. The remainder is rejected.

Discrepancy #2 Rejected as not supported by the record as a whole. Discrepancy #3 Rejected as not supported by the record as a whole. Discrepancy #4 Mostly argument and so rejected. The conclusions drawn do not consider the entire record.

Discrepancy #5 Accepted to the degree supported by the record. The remainder is rejected.

Discrepancy #6 Mostly argument and so rejected. Most of first separated section is not in the record. The next internal division is accepted to the degree it is supported in the record; otherwise rejected. The third and fourth internal divisions are mere argument and are so rejected. The 5th, 6th, and 7th internal divisions on the page 4 are all rejected as mere argument with no reference by exhibit number.

Respondent' s PFOF:

These have been struck.

COPIES FURNISHED:

Robert L. Matson 1214 Olive Street

Palatka, Florida 32177

Mark N. Woyar, Esquire Ross & Hardies

150 North Michigan Avenue Suite 2500

Chicago, Illinois 60601

Donald A. Griffin Executive Director

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel Florida Commission on Human

Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Docket for Case No: 89-004318

Orders for Case No: 89-004318