STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES BLOUNT, )

)

Petitioner, )

)

vs. ) Case No. 90-5856

) CITY GAS COMPANY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 26, 1991, in Titusville, Florida, before Joyous D. Parrish, a designated hearing officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Susan K. Erlenbach

503 South Palm Avenue Titusville, Florida 32796

For Respondent: C. Graham Carothers

Post Office Box 391 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent terminated the Petitioner from his employment in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began on August 1, 1990, when the Florida Commission on Human Relations issued a notice of failure of conciliation which notified the parties that efforts to conciliate Petitioner's claim had been unsuccessful. On September 6, 1990, the Petitioner filed a petition for administrative relief that alleged he was discriminated against by his former employer by reason of his race. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on September 18, 1990.

At the hearing, the Petitioner testified in his own behalf and presented the testimony of the following witnesses: Michael Cox, Bruce Wilson, Larry Hixon, Martha B. Williams, Dominick Chianese, and Henry Duheart. Larry Hixon testified on behalf of the Respondent. Petitioner's exhibits numbered 1 through

5 were admitted into evidence. Respondent's exhibits numbered 1 and 2 were also admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on April 3, 1991. Specific rulings on the proposed findings of fact submitted by the parties are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Petitioner is a black male who was employed by the Respondent, City Gas Company of Florida, from June, 1966 until October 31, 1988.

   
   

2. At all times material to this case, the Respondent had an after hours policy which prohibited its employees from working for other gas companies, contractors, self employment, or any gas related field without prior permission from the Respondent's executive office. Failure to abide by that policy would subject an employee to immediate termination.

   
   

3. The Respondent's policy for services performed while on duty required the employee to work only on behalf of the company.

   
   

4. Monies for services rendered by Respondent's employees while on company time were to be remitted to the Respondent's office with the appropriate paperwork within a timely manner. Normal business practice would be for a repairman to remit monies and paperwork either the afternoon of the job or the next business day if a same day return to the office would be impractical.

   
   

5. In April, 1988, the Petitioner was given a work assignment at the home of a customer named Mrs. Rhodes. Petitioner was to turn on Mrs. Rhodes' furnace. After inspecting the unit, Petitioner advised Mrs. Rhodes that the furnace should be cleaned. Subsequently, she authorized that work and the Petitioner dismantled and cleaned the furnace while on company time. Upon completing the task, Petitioner asked for and received from Mrs. Rhodes two checks: one payable to Respondent to cover the turn on and deposit; one made payable to Petitioner personally for the cleaning of the unit. The Petitioner cashed the second check, in the amount of $25.00, and remitted the other check to the company.

   
   

6. Sometime later, the Respondent received a complaint from Mrs. Rhodes concerning the furnace. Mr. Hixon, vice president and general manager for the company, confronted the Petitioner regarding the matter. During that conference Mr. Hixon asked Petitioner for an explanation regarding the second check which Mrs. Rhodes had reportedly paid to him. Petitioner did not admit that he had performed additional work on company time (beyond the routine turn on). Also, Petitioner did not admit that he had received monies payable to himself, and that he had cashed that second check.

   
   

7. Bill Joynt is a white male employed by Respondent. In September, 1988, Mr. Joynt was assigned to make a service call for a customer named Mr. Cox. After installing a valve on Mr. Cox's furnace, Mr. Joynt received $80.00 cash from the customer. Later Mr. Cox contacted the Respondent to complain that the furnace was still not operating correctly. Mr. Cox advised the company that he had paid $80.00 for the repair but that he was unsatisfied with the work.

8. Mr. Hixon contacted Mr. Joynt and confronted him as to why the $80.00 had not been remitted to the company. Mr. Joynt immediately acknowledged that he had forgotten to turn in the payment. Subsequently, Mr. Joynt turned in the

   $80.00 to the company.

   
   

9. Because he readily admitted his error, the Respondent suspended Mr. Joynt for three days without pay and allowed him to return to work.

   
   

10. Because he did not admit his error (in fact, Petitioner continued to deny it until the day of the hearing in this cause), the Respondent terminated Petitioner from his employment. Petitioner's lack of forthrightness, not his race, was his own undoing.

    
    

11. The vacancy created by Petitioner's termination was filled under the terms of the Company's bargaining agreement with the union. A white male was entitled to and did fill the vacant position.

    
    

12. Since leaving Respondent's employment, Petitioner has become employed by the Brevard County School Board but earns less than his prior employment afforded him.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

14. Section 760.10, Florida Statutes, provides, in part:

    
    

    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.

          
          

15. In employment cases where an individual alleges disparate treatment because of race, such individu1al has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds in proving a case of discrimination, the burden then shifts to the employer to articulate some legitimate, non-discriminatory, basis for the treatment given the employee. In this case, the Petitioner has established that he is a black male formerly employed by the Respondent company and that he was terminated by that company on or about October 31, 1988. Further, Petitioner has demonstrated that he was replaced in his employment by a white male. Giving Petitioner the benefit of the doubt, and construing these facts to suggest that Respondent wanted to replace Petitioner because of his race, Petitioner has established a prima facie case; however, Respondent has articulated legitimate, non-discriminatory reasons for the treatment given Petitioner.

    
    

16. First, Petitioner violated company policies regarding working for himself while on company time. In the alternative, if he was working for the company when he performed the services for Mrs. Rhodes, then Petitioner failed to account for and to remit monies to the company in accordance with

    Respondent's policy. Moreover, when discovered, Petitioner did not readily admit the errors. Unlike a white employee who was caught in a similar transgression, Petitioner refused to be accountable for his improper conduct.

    
    

17. Second, Respondent filled Petitioner's employment vacancy in accordance with guidelines established with the union. Petitioner has not suggested that those guidelines are discriminatory in nature.

    
    

18. Petitioner has not established that the Respondent's stated basis for dismissal was pretextual nor has he proven the company's act in terminating his employment was for discriminatory reasons.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination.

DONE and ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991.

APPENDIX TO CASE NO. 90-5856

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

None timely submitted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraph 1 is accepted.

   
   

2. The first sentence of paragraph 2 is accepted. With regard to the remainder of the paragraph, it is accepted that Petitioner knew all on duty work was to be done for the company; off duty work was performed by employees, including this Petitioner, with Respondent's approval and assistance.

   
   

3. Paragraphs 3 through 6 are accepted.

   
   

4. With the deletion of the word "repeated" paragraph 7 is accepted.

5. With the clarification that Mr. Joynt agreed to turn the money in when he was confronted (perhaps found out), paragraph 8 is accepted.

   
   

6. Paragraphs 9 and 10 are accepted.

   
   

7. Paragraph 11 is rejected as irrelevant or hearsay.

   
   

8. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. The company loaned Petitioner tools and sold him appliances to install during his off duty time. His failure to the company resulted from his on duty activities in his own cause and his failure to readily admit his error when confronted.

   
   

9. Paragraphs 13 through 16 are accepted.

COPIES FURNISHED:

Susan K. Erlenbach

503 South Palm Avenue Titusville, Florida 32796

C. Graham Carothers Post Office Box 391

Tallahassee, Florida 32302

Margaret Jones, Clerk Florida 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

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: 90-005856

Orders for Case No: 90-005856