STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. FIELDS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5134

) OVERNITE TRANSPORTATION COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 26, 1991, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel E. Jonas, Esquire

Jonas & Jonas 300-71st Street Suite 630

P. O. Box 41-4242

Miami Beach, Florida 33141

For Respondent: David L. Terry, Esquire

Blakeney, Alexander & Machen 3700 NCNB Plaza

Charlotte, North Carolina 28280 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1987).

PRELIMINARY STATEMENT

On March 24, 1988, the Petitioner filed a "Charge of Discrimination" (FCHR No. 88-4303) with the Florida Commission on Human Relations claiming that he was unlawfully terminated from his position as a Road Driver with Respondent, Overnite Transportation Company ("Overnite"). Petitioner has diabetes and contends that he was discriminated against because of this handicap.

On December 14, 1989, the Florida Commission on Human Relations issued a Notice of Determination: CAUSE; indicating its determination that there was reasonable cause to believe that an unlawful employment practice had occurred. The Respondent filed a request for redetermination and on May 21, 1990, the Florida Commission on Human Relations issued a Notice of Redetermination:

CAUSE; reaffirming its earlier determination that there was reasonable cause to believe that an unlawful employment practice had occurred. Conciliation efforts between the parties were unsuccessful and, on July 12, 1990, the Commission issued its Notice of Failure of Conciliation.

On August 10, 1990, the Petitioner filed with the Florida Commission on Human Relations his Petition For Relief. That Petition was transmitted to the Division of Administrative Hearings on August 14, 1990. The Respondent filed its "Answer To Petition For Relief" with the Division of Administrative Hearings on September 11, 1990.

An Order of Pre-Hearing Instructions was entered on September 13, 1990. The case was initially set for hearing on December 4, 1990. On November 9,

1990, the Petitioner filed a Motion for Continuance which was not objected to by the Respondent and was granted. The hearing was rescheduled for January 31, 1991.

On January 24, 1991, the Respondent filed its Prehearing Stipulation in compliance with the requirements of the Order of Pre-Hearing Instructions. The Petitioner failed to communicate with counsel for the Respondent to coordinate the preparation of a joint prehearing stipulation and did not file a prehearing stipulation of his own.

In a telephone conference with the undersigned Hearing Officer on about January 23, 1991, Petitioner's counsel verbally requested a continuance of the hearing set for January 31, 1991. A telephone conference hearing was conducted between counsel for both parties and the undersigned on January 24, 1991.

During that telephone conference, counsel for Petitioner represented that he was still attempting to locate and serve subpoenas on several witnesses that he felt were critical to his case. Respondent objected to a continuance. After listening to argument from both parties, the parties were advised that the hearing would be continued. On January 25, 1991, an Order was entered canceling the hearing scheduled for January 31, 1991, and rescheduling the hearing for March 12-14, 1991. That Order provided that the provisions of the Notice of Hearing and the prehearing instructions entered in the case would remain in full force and effect. The Respondent filed a Response In Opposition To Petitioner's Motion for Continuance with the Division of Administrative Hearings on January 28, 1991. That Response, which was prepared prior to the telephone hearing, set forth the Respondent's objections to a continuance and argued that the Petitioner had failed to proceed with discovery since the first scheduled hearing date. The Respondent further contended that the Petitioner had failed to comply with the Order of Prehearing Instructions.

On March 6, 1991, the Respondent filed a Motion For Cancellation Of Hearing Or Exclusion Of Witnesses And Exhibits. That Motion was based on the Petitioner's alleged failure to comply with the Order of Prehearing Instructions and failure to provide Respondent with a list of exhibits, witnesses, issues presented, and other matters required by the Order of Prehearing Instructions.

A telephone conference hearing was conducted on March 8, 1991 in connection with this Motion. During that hearing, counsel for Petitioner advised that, for a variety of reasons, he had been unable to complete discovery and was not prepared to go to hearing as scheduled. He indicated an intent to dismiss the administrative proceeding and to file an action in Circuit Court. As set forth in an Order entered on March 11, 1991, the parties conferred subsequent to the telephone hearing and agreed that, in lieu of the filing of a circuit court action, the administrative hearing should be rescheduled. Accordingly, the hearing scheduled for March 12-14, 1991, was cancelled and the case was

rescheduled for hearing on June 25-27, 1991. Again, the Order Granting Continuance and Rescheduling Hearing mandated that all other provisions of the Notice of Hearing and the prehearing instructions entered in this case were to remain in full force and effect.

On June 14, 1991, the Respondent filed its Second Motion For Cancellation Of Hearing And Exclusion Of Witnesses And Evidence. The grounds for this Motion, as set forth therein, were that the Petitioner had still not complied with the Order of Prehearing Instructions and had failed to disclose the identities of the witnesses and exhibits he intended to introduce at the impending hearing. A telephone conference hearing was held on June 18, 1991 during which the Petitioner was ordered to identify the witnesses and exhibits he intended to introduce at the hearing. Counsel for Petitioner verbally advised that the only witnesses that would be called to testify were those that had already been deposed and that no exhibits would be introduced other than those previously provided to Respondent.

By letter dated June 20, 1991 and filed with the Division of Administrative Hearings on June 21, 1991, Respondent renewed its Motion To Cancel Hearing based upon Petitioner's alleged failure to comply with the directions given during the June 18 conference call. On June 21, 1991, another telephone conference hearing was held between counsel for the parties and the Hearing Officer. During that telephone conference, Petitioner represented that only the Petitioner and one other witness, who had already been deposed, would be called to testify at the hearing. In addition, Petitioner advised that the only exhibits that would be offered would be documents that were obtained from the Respondent and/or documents that had previously been provided to the Human Relations Commission in connection with its evaluation of this case. Petitioner was advised that no other witnesses or exhibits would be accepted at the final hearing.

At the final hearing on June 26, 1991, the Respondent filed its Motion To Enter Into The Record Matters Concerning Denial Of Its Motion For Cancellation And Dismissal And To Assert Continuing Objections To The Introduction Of Witnesses And Evidence By The Petitioner. The objection to Petitioner presenting any evidence was overruled and the hearing was allowed to proceed. Petitioner again advised that he would not call any witnesses who had not previously been deposed or offer any documents that did not fall within the categories previously discussed. Respondent was instructed to renew its objection to any witnesses or documents that did not fall within these categories. The Respondent lodged a continuing objection to the introduction and admission of all Petitioner's exhibits and testimony.

At the hearing, the Petitioner testified on his own behalf. The Petitioner also read into the record excerpts from the deposition of Mark A. Carlson.

During the hearing, Petitioner had ten exhibits marked. Petitioner's Exhibit 1 was accepted into evidence. Petitioner's Exhibit 2 was withdrawn. Petitioner's Exhibit 3 was Respondent's Response To Request For Admissions which was accepted for filing and made a part of the record in this case. In accordance with a ruling made during the hearing, the Petitioner submitted copies of Exhibits 4-10 subsequent to the hearing by letter dated July 5, 1991. These exhibits were documents that had been submitted to the Human Relations Commission as part of its investigation into this case. Respondent's objection to these documents was overruled. However, in view of the Petitioner's failure to disclose these documents as exhibits prior to the date of the hearing, Respondent was granted leave to supplement the record in this case with supplemental affidavits directly related to these exhibits.

The Respondent presented the testimony of Larry Branham, Arnold Dickey, Claude Walls, and Dennis Dawkins. The Respondent also submitted excerpts from the deposition testimony of Randy Gobble, James Watkins, Kenneth Boswell, Raymond Raulerson, Kenny Hudson, and Mark Carlson.

At the commencement of the hearing, Respondent submitted a binder containing 33 premarked exhibits. Exhibits 1-7, and 10-14 and 28 of that notebook were accepted into evidence without objection. Petitioner objected to Respondent's Exhibits 8 and 9 on the grounds of relevancy. Those Exhibits were part of Petitioner's Unemployment Compensation file. Petitioner stipulated to the authenticity of the documents and the relevancy objections were overruled. Respondent's Exhibit 15 was withdrawn. Petitioner objected to Respondent's Exhibits 16 and 17 which were medical records of two drivers employed by Respondent who have diabetes. Petitioner's objections to these exhibits were overruled. Respondent's Exhibits 18-27 were copies of pleadings that are already of record in this case. These exhibits were not accepted into evidence. Respondent's Exhibits 29-33 were a listing of the deposition excerpts offered into evidence by Respondent. Those excerpts have been reviewed and considered.

During the hearing, Respondent had an additional exhibit, Respondent's Exhibit 34, marked and offered it into evidence. That Exhibit had not previously been disclosed to Petitioner. The Exhibit was an application submitted by Petitioner in an attempt to obtain subsequent employment.

Respondent offered this exhibit as an impeachment exhibit. At the hearing, Petitioner's objection to the exhibit was overruled. However, upon further research, it is concluded that this Exhibit was collateral evidence that is inadmissable for impeachment purposes under the Florida Evidence Code. See, Fla. R. Evid. 608(b). Pursuant to Section 120.58(1), the rules of evidence are relaxed in an administrative proceeding. Nonetheless, Respondent's Exhibit 34 is totally irrelevant to the issues in this case. Accordingly, Petitioner's objection to the introduction the exhibit is sustained and that document has not been considered in the preparation of this Recommended Order.

On June 21, 1991, Respondent filed Overnite's Motion To Take Testimony By Telephone Or To Hold Open The Hearing Record For Incapacitated Witness. That Motion indicated that one of Respondent's witnesses, Don Colins, was unable to attend the hearing due to his medical condition. During the telephone conference hearing held on June 21, 1991, the parties were advised that the record in this proceeding would be left open in order for Respondent to submit the testimony of Mr. Collins by deposition. That deposition was taken on July 15, 1991 and filed with the Division of Administrative Hearings on July 24, 1991.

In accordance with the ruling discussed above regarding Petitioner's Exhibits 4-10, Respondent filed excerpts from the deposition of the Petitioner and an Affidavit of A. Larry Branham, with attachments, on July 24, 1991.

A transcript of the proceeding has been filed. At the conclusion of the hearing, the parties were advised of their right to submit proposed findings of fact and conclusions of law within ten days after the filing of the deposition of Mr. Collins. The Respondent timely filed a Proposed Recommended Order. No submittal has been received from Petitioner. A ruling on each of Petitioner's proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal.

   
   

2. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988.

   
   

3. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form.

   
   

4. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes.

   
   

5. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations.

   
   

6. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers.

   
   

7. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge.

   
   

8. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises.

9. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama.

   
   

10. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers.

    
    

11. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced.

    
    

12. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review

    indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations.

    
    

13. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble.

14. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987.

    
    

15. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag.

    
    

16. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext.

    
    

17. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge.

    
    

18. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy.

19. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon.

    
    

20. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy.

    
    

21. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later.

    
    

22. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual.

    
    

23. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation

    regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic.

    
    

24. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it.

    Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday.

    
    

25. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The Petitioner contends that he was unlawfully discharged by the Respondent because Overnite unlawfully discriminated against him due to his handicap. The Petitioner relies on the Florida Human Rights Act of 1977, Section 760.10 et seq., Florida Statutes (1987). The Human Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provides in pertinent part as follows:

    
    

    760.01 PURPOSES; CONSTRUCTION; TITLE -

    
    

    * * *

    
    

    1. The general purposes of ss. 760.01-760.10 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interests in personal

       dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

       
       

    2. Sections 760.01-760.10 shall be construed according to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

    
    

    * * *

    
    

    760.10 Unlawful employment practices; remedies construction

    
    

    1. It is an unlawful employment practice for an employer:

       
       

       1. 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, national origin, age, handicap, or marital status.

    
    

28. The Florida Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000 e-2. School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). In Florida, there is a long standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 16 F.L.W. 1278 (Fla. 1st DCA, May 8, 1991).

    
    

29. In Department of Corrections v. Chandler, 16 F.L.W. 1820 (Fla. 1st DCA, July 10, 1991), the First District Court of Appeal recently analyzed the types of claims under the Florida Human Rights Act. In that case, the court noted as follows:

    
    

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, ..., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination; however, as to the later, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. [citations omitted] Id. at 1821 n.2

30. The Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:

    
    

    ...The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668

    (1973), which was then revisited in detail in Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.

    2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether

    the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one

    of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade

    the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief.

    If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of

    intentional discrimination. [citations omitted].

    
    

31. In order for a petitioner to prevail in a disparate treatment case and obtain the relief he seeks, he must establish that the Respondent's employment decision was based on a protected status -- i.e., the petitioner's handicap. In this case, Petitioner has the burden of presenting evidence sufficient to establish that his handicap (diabetes) was a determining factor in the employment decision made to discharge him. See, U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Penna v. Brattleboro Retreat, 702 F.2d 322 (2nd Cir. 1983) and Toussaint v. Ford Motor Co., 581 F.2d 812 (10th Cir. 1978). In other words, the Petitioner must prove that what motivated Gerald Rogers and Don Collins to discharge him was his diabetic condition.

32. As noted in several decisions, there is seldom direct evidence of discriminatory intent. See, e.g., School Board of Leon County v. Hargis, 400 So.2d 103, 107 (1981). Therefore, circumstantial evidence, or inferences, may be relied upon to establish discriminatory motive. However, the focus of the inquiry is the reason behind the Respondent's personnel decision.

    
    

33. It is questionable whether Petitioner in this case has met his initial burden of proving a prima facie case of discrimination. There is little or no evidence to indicate that Respondent's decision to terminate Petitioner was based on his diabetic condition. Collins had approved Petitioner's transfer to Miami from Memphis and had known about Petitioner's diabetic condition during the 21 months the Petitioner worked for him. The city work offered to Road Drivers was purely voluntary and there is no persuasive evidence that the Petitioner's refusal to take any city runs subsequent to November of 1987 caused hard feelings between Petitioner and Collins or other managers' in the Miami Terminal. The Petitioner was not forced to do city runs and did not do them for more than a year before he was discharged. Gerald Rogers had no contact whatsoever with the Petitioner prior to the complaints he received from Claude Walls and Dennis Dawkins. He did not operate out of the Miami Terminal and there is no indication that he had any knowledge of Petitioner's refusal to make city runs in 1986. In fact, there is no evidence that Rogers even knew that Petitioner was diabetic. While Rogers may have been hasty in discharging Petitioner when other employees also regularly violated the policy against carrying weapons, there is no evidence that Rogers' decisions and actions were discriminatorily motivated by the Petitioner's diabetic condition. In sum, Petitioner has not even provided circumstantial evidence of discriminatory intent. In any event, the Respondent has articulated legitimate, non- discriminatory business reasons for its employment decision.

    
    

34. The evidence is clear that Petitioner carried a firearm on Company property and in Company trucks and that he did not properly log in stops along his route when he was driving as required by Company policy and Department of Transportation regulations. It is also clear that Petitioner was involved in a couple of troublesome incidents with Dennis Dawkins. While the exact circumstances surrounding Petitioner's interactions with Dawkins are somewhat cloudy, it is clear that Dawkins became nervous and scared and reported the pistol incident to other drivers immediately afterwards and, eventually, all of the incidents were brought to the attention of Gerald Rogers. The combination of all these factors led to the decision of Rogers and Collins to terminate the Petitioner's employment.

    
    

35. While Petitioner claims that he was not aware of the policy against carrying a gun, the focus in this case is not on the Petitioner's knowledge of the rule but, instead, on the employer and whether Collins and Rogers reasonable believed such a policy existed and had been violated by the Petitioner. The evidence established that the managers responsible for the discharge were motivated by their understanding of company policy and the facts that they learned about the Petitioner's behavior. While some other employees apparantly carried firearms, it does not appear that anyone responsible for the decision to discharge the Petitioner was aware that other employees of Overnite carried weapons on company premises.

    
    

36. The Petitioner seeks to justify carrying a weapon by presenting evidence that his immediate supervisors, Gaskins and Carlson, knew that he carried a pistol on the docks and in his truck. However, Gaskins and Carlson did not discharge the Petitioner nor did they have any input into the decision- making process. While Carlson was aware that the Petitioner carried a pistol,

    it does not appear that he ever told Don Collins this fact. Indeed, Carlson instructed the Petitioner that he was violating Company policy. Likewise, there is no evidence that Gaskins informed Collins that Petitioner or anyone else was carrying a weapon. To the contrary, Gaskins and his subordinate, Watkins, worked at night and concealed their weapons from Collins because they were aware of the Company policy and knew that they would be fired if caught in possession of firearms on Overnite's property.

    
    

37. In conclusion, even assuming that Petitioner established a prima facie case, Overnite has met its shifted burden by establishing that the termination of the Petitioner's employment was due to legitimate, non-discriminatory reasons which were not a pretext for discrimination. See, National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief.

RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991.

J. STEPHEN MENTON 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 24th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134

Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 3.

   
   

4. Adopted in substance in Findings of Fact 4.

   
   

5. Adopted in substance in Findings of Fact 5.

   
   

6. Adopted in substance in Findings of Fact 6 and 7.

   
   

7. Adopted in substance in Findings of Fact 14.

   
   

8. Adopted in substance in Findings of Fact 15.

   
   

9. Adopted in substance in Findings of Fact

   16 and 18.

   
   

10. Adopted in substance in Findings of Fact

    16 and 17.

    
    

11. Adopted in substance in Findings of Fact 18.

12. Adopted in substance in Findings of Fact

    8 and 9.

    
    

13. Adopted in substance in Findings of Fact 10.

    
    

14. Adopted in substance in Findings of Fact 11.

    
    

15. Adopted in substance in Findings of Fact 12.

    
    

16. Adopted in substance in Findings of Fact 13.

    
    

17. Rejected as irrelevant and unnecessary.

    
    

18. Adopted in substance in Findings of Fact 19.

    
    

19. Adopted in substance in Findings of Fact 18.

    
    

20. Adopted in substance in Findings of Fact 21.

    
    

21. Adopted in substance in Findings of Fact 22.

    
    

22. Adopted in substance in Findings of Fact 23.

23. Adopted in substance in Findings of Fact 24.

    
    

24. Adopted in substance in Findings of Fact

25 and 26.

COPIES FURNISHED:

Margaret Jones, Clerk Commission on Human

Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Daniel E. Jonas, Esquire Jonas & Jonas

300-71st Street Suite 630

P. O. Box 41-4242

Miami Beach, Florida 33141

David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza

Charlotte, North Carolina 28280

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005134

Orders for Case No: 90-005134