STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA J. BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6596

) LEHIGH PORTLAND CEMENT COMPANY/ ) FURNITURE DIVISION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Marianna, Florida.

APPEARANCES

For Petitioner: Ben R. Patterson, Esq.

PATTERSON & TRAYNHAM

1215 Thomasville Road

P.O. Box 4289

Tallahassee, Florida 32315-4289

George J. Little, Esq. 134A Constitution Lane

P.O. Box 1612

Marianna, Florida 32446

For Respondent: John D.C. Newton, III, Esq.

AURELL, RADEY, ET AL.

Suite 1000, Monroe-Park Tower

101 North Monroe Street

P.O. Drawer 11307 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.

PRELIMINARY STATEMENT

This cause arose upon the filing by the above-named Petitioner of a charge of discrimination with the Florida Commission on Human Relations directed against Lehigh. The Petitioner has alleged that Lehigh discriminated against her on the basis of her race by discharging her following a verbal altercation with another employee, who is black and who, in turn, only received a written and verbal reprimand for her behavior in the incident in question. By amendment of the Petition at the hearing, to conform with the evidence, the Petitioner also alleges that her discharge was due to discrimination on account of her sex and because of management's alleged disapproval of a supposed interracial personal relationship which the Petitioner allegedly had with another co- employee, Major Hallmon, who is a black male.

Lehigh contends that it properly discharged the Petitioner for misconduct, pursuant to its customary disciplinary policies. Lehigh contends that the Petitioner was not treated differently than any other similarly-situated employee and denies that the disciplinary action imposed was in any way related to any real or perceived relationship between the Petitioner and Mr. Hallmon or to any of the other alleged reasons.

The cause proceeded to hearing as noticed. At the hearing, the Petitioner presented the testimony of herself, Major Hallmon, and Albert Dale Berger.

Lehigh presented the testimony of Joe Hardwick, Albert Dale Berger, Charles Edward Billings, Ken McDonald, Mary Anne Hamlin, Ron Baker, Wilford Pittman, Odell Harrison, Dorothy Hall, Jack Toole, and George Lee Williams. The Petitioner testified again in rebuttal.

The Petitioner presented three exhibits. Exhibits 2 and 3 were admitted into evidence. The Petitioner's Exhibit 1 was not admitted into evidence for reasons delineated on the record at the hearing and in this Recommended Order.

Lehigh presented Exhibits A-H, all of which were admitted into evidence.

Exhibits B, C and D, being hearsay, were not admitted for the proof of the truth of the factual information contained in those three exhibits, rather, they were admitted merely to establish that the newspaper advertisements contained in those exhibits had been published in the newspapers involved, as more specifically ruled upon at pages 107, 110 and 112 of the transcript of these proceedings.

At the conclusion of the hearing, the parties elected to obtain a transcript thereof and to avail themselves of the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The parties requested and were granted an extended briefing schedule and subsequent to the hearing, agreed upon an extension of that schedule, with the Hearing Officer's approval. The parties' proposed findings of fact and conclusions of law and Proposed Recommended Orders were thus timely filed on June 28, 1991. Those proposed findings of fact have been treated in this Recommended Order and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the

   date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement.

   
   

2. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory.

   
   

3. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling.

   
   

4. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name.

   
   

5. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger".

   
   

6. The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used

   the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms.

   Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work.

   
   

7. Lehigh has a very specific policy prohibiting racial slurs. That policy provides:

   
   

   Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge.

   
   

   This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time.

   
   

8. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously.

   
   

9. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to

   the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent.

   
   

10. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation.

    
    

11. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee.

    
    

12. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract.

    
    

13. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment.

    
    

14. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee

    and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989.

    
    

15. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon.

    
    

16. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger.

    
    

17. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question.

    
    

18. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible.

    
    

19. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2,

    1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above-

    quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record.

    
    

20. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment.

    
    

21. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination.

    
    

22. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them.

    
    

23. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline.

24. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men.

    
    

25. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy.

26. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above.

    
    

27. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection.

    
    

28. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it.

    
    

29. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her.

    
    

30. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management.

31. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business".

    
    

32. Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed.

    
    

33. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure.

    
    

34. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was

    $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in

    excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to

    $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year.

    
    

35. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989.

    
    

36. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved.

    
    

37. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Section 120.57(1), Florida Statutes (1989).

    
    

39. Lehigh is an employer within the meaning of Section 760.02, Florida Statutes (1989).

    
    

40. Section 760.10, Florida Statutes (1989), provides in pertinent part:

    
    

    It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise to discri- minate 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.

    
    

41. This statute is patterned after Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. Section 2000E-2. Florida appellate decisions have thus construed the Florida statute in a manner similar to its federal counterpart according to the opinion in School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); and Pasco County School Board v. Florida Public Employee Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). Florida courts have consistently applied the burden-of-proof standards enunciated in cases arising under the above federal act to cases which arise under the above-quoted Florida statute. See McDonnell-Douglas Corporation

    v. Green, 411 U.S. 792 (1973); and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

42. The case of Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982) modified the burden-of-proof standard enunciated by the McDonnell-Douglas court so as to require that an employee had the burden of establishing a prima facie case by showing that he was a member of a protected class; that he was qualified for the position involved; and that he had been discharged and replaced by a person outside of the protected class or discharged while a person outside of that class with equal or lesser qualifications was retained. A white person alleging discriminatory treatment on the basis of race has been held to a burden of showing particularized evidence or background circumstances that suggest that the defendant is an employer who discriminates against the majority race. See E.G. Bishop v. District of Columbia, 788 F.2d 781, 786 (DC Cir. 1986); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63 (6th Cir. 1985); Lanphear v. Prokop, 703 F.2d 1311 (DC Cir. 1983). The white complainant must show that an employer treated employees differently who were actually similarly situated but who were not members of the protected class. See, Murray, supra. "Racial discrimination against whites is forbidden it is true, but no presumption of discrimination can be based on the mere fact that a white is passed over in favor of a black." Ustrak v. Fairman, 781 F.2d 573, 577 (7th Cir. 1986), cert. denied, 479 U.S. 824 (1986), 107 S.Ct. 95 (1986).

    
    

43. In cases involving alleged racial bias and the application of discipline, an employee has been held to a standard of showing either (1) that she did not violate the work rule, or (2) that she engaged in misconduct similar to that of a person outside the protected class, and that the discipline against her was more severe than that imposed on others who engaged in similar

    misconduct. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). This showing has been held to be required in addition to the white employee's burden to prove intentional race-based discrimination or that the employer involved routinely discriminates against whites. Murray v. Thistledown Racing Club, Inc., 770 f.2d 63 (6th Cir. 1985).

    
    

44. Burdine, supra. is also authority for the proposition that if, indeed, an employee meets this initial burden of demonstrating a prima facie case of race-based discrimination, then the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the discharge or the differential treatment. However, only the burden of going forward with evidence to show this shifts to the employer. The ultimate burden of persuasion in the case does not. The employee retains the ultimate burden of proving that intentional discrimination was imposed against him by the employer. Burdine, supra. at 254- 56.

    
    

45. If an employer, on the other hand, carries its burden of showing a non-discriminatory reason for termination, then the employee must prove by a preponderance of evidence that the reasons offered by the employer were pretextual and that the discharge was actually intentionally discriminatory.

    The employer thereafter would then have the opportunity to rebut that showing by proof of the absence of any discriminatory motive.

    
    

46. In the instant situation, the Petitioner did not prove a prima facie case of discrimination on the basis of her race, her sex, or the related issue of the supposed relationship she maintained with Mr. Hallmon. She did not prove that she was treated differently than similarly-situated, non-white employees. In fact, she did not establish that she, as to her situation with regard to the altercation in question, and the related circumstances involving her employment record and disciplinary record, was similarly situated to Ms. Hall. It was established that the Petitioner's conduct was more egregious than that of Ms. Hall. The Petitioner was the aggressor and initiated the argument. When Ms. Hall, following company procedure, broke off the argument and retreated to the supervisor's office to have the matter settled, the Petitioner became quite hostile and loudly uttered racial slurs concerning Ms. Hall (whether or not she heard them) so that a number of co-workers did overhear them. She then followed Ms. Hall to the supervisor's office and continued the argument. If Ms. Hall's resulting remarks in the supervisor's office could be regarded as racial slurs, they were not as severe as those uttered by the Petitioner. The Petitioner's racial slurs were loudly spoken in the work place and overheard by many co- workers, while Ms. Hall's statements concerning the Petitioner as a "white fool" and with reference to her "white shorts", as delineated in the above Findings of Fact, were only made after severe provocation initiated by the Petitioner while in the supervisor's office, not in the presence of other co-equal employees. Lehigh appropriately treated the Petitioner's statements in a more severe fashion. There is no question that the Petitioner clearly violated Lehigh's explicit policy prohibiting racial slurs, quoted in the above Findings of Fact.

    
    

47. Lehigh's determination and interpretation of its racial policy to the effect that the use of racial slurs, such as the word "nigger", warrants a more severe disciplinary reaction, is a rational interpretation and position in view of the particularly inciting and disruptive influence of the use of that word concerning or directed to another person, in view of its historical and racial significance, as delineated in more detail in the above Findings of Fact.

48. Although Ms. Hall made a threatening gesture by picking up the ashtray as if to contemplate hitting the Petitioner with it, it was an act made in reaction to a relatively severe provocation by the Petitioner, involving the remarks which the Petitioner made about Ms. Hall's husband.

    
    

49. The differences between the behavior of the Petitioner and Ms. Hall in the time after the incident was over also make their situations dissimilar. During the course of the taped interview in Mr. Berger's office, the Petitioner again referenced Ms. Hall and the circumstances of the situation, as she saw it, in language characterized by use of the word "nigger". The Petitioner's demeanor and the language she employed, in conjunction with her emotional state, obvious during this interview, shows that she had no remorse concerning her earlier statements, her behavior, and her part in the incident generally. Her demeanor memorialized in the tape of the interview demonstrated that she was still extremely irate and hostile despite having a number of hours to calm down. By contrast, Ms. Hall apologized to Mr. Berger for having been involved in the incident and assured him that she would not let herself become involved in such an incident again. Another factor which distinguishes the Petitioner from Ms. Hall's situation is her prior employment and disciplinary record. The Petitioner had had a recent disciplinary violation on June 23, 1989, approximately one and one-half months before the subject occurrence, for a similar type of conduct. That conduct was also directed at a black employee. Ms. Hall, by contrast, had had only two disciplinary violations in her entire tenure with the company. Both those violations occurred, respectively, 13 years and 16 years prior to the subject incident. She was given the discipline of a written reprimand and a suspension, respectively, for the two incidents. In all of her time with the company since then, some 18 years, she has proven to be an exemplary employee in terms of her disciplinary record.

    
    

50. Moreover, Lehigh was prohibited by its collective bargaining agreement or union contract from considering Ms. Hall's two prior disciplinary violations because they were more than nine months prior to the incident under consideration here. "Collective bargaining agreements may include implied as well as expressed terms. Furthermore, it is well established that the parties practice usage and custom is of significance in interpreting their agreement." Consolidated Rail v. Railway Labor Exec. Assn., 109 S.Ct. 2477, 2485 (1989)(citations omitted).

    
    

51. Even if those two prior violations and disciplinary experiences by Ms. Hall could be considered, they would not render Ms. Hall's previous disciplinary record similar to the Petitioner's and, therefore, render them to be similarly- situated employees. Ms. Hall had only had those two disciplinary experiences in all of her almost 18 years of employment with the company. Both of them had occurred substantially more than a decade previous to the subject incident.

    This demonstrates that she has a much better disciplinary record, in terms of consistent, approriate behavior, than the Petitioner, who was disciplined for a similar infraction involving overtones of racial bias less than two months prior to the subject incident.

    
    

52. Further, Ms. Hall was not absolved of any disciplinary measures, as compared to the Petitioner's discipline of termination. In fact, Ms. Hall was significantly disciplined for her actions. She received a verbal warning for the name calling and a written reprimand for making the threatening gesture with the ashtray. These are significant disciplinary measures because both of them are recorded in the employee's personnel file, which can have detrimental consequences to the employee's future employment career with that or another employer. The difference in the discipline imposed was shown by the above

    Findings of Fact, and the evidence of record supportive of them, to clearly be based upon non-discriminatory differences in the employee's conduct and employment-disciplinary histories. This situation is akin to that in Murray v. Thistledown Racing Club, Inc., supra. The employee in that case also did not prove that the employer discriminated against whites. Therefore, the first prong of the prima facie showing required was not met. The evidence showed that the white employee involved was dissimilar from the black employees who were not discharged. The white employee had a persistent record of large money shortages exceeding those of black employees in both frequency and amount. The white employee took several days to replace the last shortage of $1,900.00 which created a risk for the employer. The court concluded that different treatment does not constitute disparate treatment. The same is true with the situation at bar. See, also, Simmons v. Camden County Board of Education, 757 F.2d 1187 (11th Cir. 1985), rehearing denied 767 F.2d 938 (11th Cir. 1985), cert. denied,

    474 U.S. 981 (1985), 106 S.Ct. 385 (1985); Comeaux v. Uniroyal Chemical Corp., 849 F.2d 191 (5th Cir. 1988), which held, respectively, that disciplining an employee more harshly for an on-going pattern of conduct manifesting disrespect and defiance toward supervisory authority, as compared to other employees who had committed similar infractions but had not exhibited such a pattern; and an employee who was disciplined based upon his record of prior safety violations, constituted valid, non-discriminatory reasons for differential treatment in comparison to the employees with no history of disrespectful or defiant conduct and no history of prior safety violations. An adequate, rational, non- discriminatory basis for the different disciplinary treatment of the Petitioner, as opposed to Ms. Hall, and the other employees in the exemplary instances mentioned in the above Findings of Fact, has been shown.

    
    

53. The Petitioner attempts to demonstrate that she was treated differently from other white employees, who had also used the term "nigger" on other occasions. At hearing, she first asserted the theory that this differential treatment was based upon on a perceived interracial, personal relationship between her and Mr. Hallmon. The attempt to establish discriminatory intent linked to any relationship between the two is without substance. The Petitioner did not establish that any real or perceived relationship between her and Mr. Hallmon played any part in the decision to terminate her. The only evidence presented was the self-serving testimony of the Petitioner and Mr. Hallmon regarding the whispers and stares of co- employees. This behavior by other employees, if it actually occurred, could also be attributed to the fact that Mr. Hallmon is a married man, as well as to the fact that Mr. Hallmon is black and the Petitioner is white. Moreover, Mr. Hallmon could only describe two occasions when a co-worker had commented on the issue to his knowledge. Furthermore, the reaction of other employees to their personal relationship, if one existed, is irrelevant. The Petitioner has not actually alleged a pattern of racial harassment at the work place. Occasional or sporadic usage of racial slurs or epithets by co-employees will not support an actionable claim of racial harassment. North v. Madison Area Association for Retarded Citizens, 844 F.2d 401 (7th Cir. 1988).

    
    

54. The actions and beliefs of management are relevant, however. Mr. Berger and, to some extent, Mr. Hallmon, in his testimony, demonstrated that Lehigh's management had no opinion or position with regard to any personal relationship between the Petitioner and Mr. Hallmon. It was not clearly established that the management of Lehigh, including Mr. Berger, actually had knowledge of any such relationship, much less took any action with regard thereto. Mr. Hallmon's general remarks to Mr. Berger, mentioned in his testimony, are not sufficient to establish the existence of a pattern of harassment in the work place so pervasive that an inference of constructive

    knowledge on the part of the employer arises upon which the employer's liability therefor could be predicated. The evidence is not sufficient to establish knowledge on the part of this employer of any such conduct. See Vance v.

    Southern Bell Tel. and Tel Co., 863 F.2d 1503 (11th Cir. 1989). Even if Lehigh's management had had knowledge or expressed disapproval of the relationship, if one existed, the Petitioner failed to establish that she was treated differently than any other employee who engaged in similar conduct, but did not have an interracial relationship with a black or white person.

    
    

55. With regard to the Cecil Sims and Coy Jackson incidents, Lehigh established valid non-discriminatory reasons for the discipline of Mr. Sims and Mr. Jackson and the reasons that disciplinary action was dissimilar to that imposed upon the Petitioner. For the reasons more thoroughly delineated in the above Findings of Fact and which are supported by the record evidence, it must be concluded that the Cecil Sims and Coy Jackson incidents, the employees involved, and the discipline imposed upon them were not similarly situated to the Petitioner in her circumstance and situation.

    
    

56. Concerning the "hangman's noose" incident, the white employee involved was immediately discharged, as well as the black employee, who was discharged for actually engaging in physical violence as a result of the actions of the white employee. This conduct was much more egregious than the conduct of Ms. Hall during the August 2, 1989 incident at issue. That difference, delineated in more detail in the above Findings of Fact, establishes an adequate, non- discriminatory explanation of why that black employee was discharged with regard to the "hangman's noose" incident, while Ms. Hall received only verbal and written reprimands.

    
    

57. Even if it were determined that the employees involved in these incidents were similarly situated to the Petitioner and received a lesser degree of discipline for similar conduct, the fact remains that these incidents occurred before Lehigh agreed, at the union representatives' urging, to institute stronger enforcement of its policy against racial slurs. That notice was clearly displayed on all company bulletin boards, and Mr. Berger personally told the Petitioner after her June 23, 1989 incident that such conduct would not be tolerated.

    
    

58. Thus, the Petitioner failed to establish a prima facie case of discriminatory treatment. She failed to demonstrate that she remained qualified for the job in question. She failed to demonstrate that she was treated differently from similarly-situated, non-white or male employees, who had engaged in similar conduct. The other employees and employee conduct examples which were adduced in the Petitioner's case prove not to be similar.

    
    

59. If it be assumed, for purposes of analysis, that a prima facie case had been established, Lehigh proceeded to establish a non-discriminatory basis for the disciplinary actions taken with regard to the Petitioner and Ms. Hall and the differences in the disciplinary actions taken with regard to the other employees and incidents concerning which evidence was adduced and the above Findings of Fact made. No sufficient and credible evidence was adduced by the Petitioner which could establish that Lehigh's articulated reasons for the discipline imposed, and reasons why it was different from that of the other employees used by the Petitioner as examples, were pretextual reasons, nor that the true reason for the discharge was discrimination by reason of race or sex.

60. It is within Lehigh's discretion to develop a policy concerning employee conduct and the consequences of that conduct. The harshness of discipline imposed by Lehigh and allowed by its policy is not an issue in this proceeding. The issue really concerns whether an unlawful employment practice has occurred and whether a prohibited form of discrimination has been committed by Lehigh. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). If an employer applies a rule differently to employees it genuinely believes are differently situated, then no discriminatory intent exists. Nix, supra. No such discriminatory intent has been shown; and therefore, no discriminatory, unlawful employment practice has occurred.

    
    

61. Concerning the issues raised with regard to damages based upon lost wages and benefits, Findings of Fact, based upon the competent, substantial evidence of record have been made hereinabove. Additionally, findings concerning the Petitioner's efforts, or the lack thereof, with regard to mitigating those lost wage and benefit damages, have been made hereinabove. Because no liability on the part of the employer has been found because it is concluded that no discriminatory employment practice was committed by Lehigh, detailed discussions and conclusions regarding damages and mitigation of damages need not be reached at this juncture. It is sufficient to conclude that, had the Petitioner proven disparate or discriminatory treatment on any theory or basis she advanced, then her damages would equate to those represented by the above Findings of Fact; that is, if the Petitioner had adequately fulfilled her duty to attempt mitigation of those damages after the time of her termination. In fact, the Petitioner did not carry out the duty to mitigate damages, which an employee situated as the Petitioner was, has, for the reasons delineated in the above Findings of Fact concerning this issue. In this regard, the discussions and the authority cited in the proposed conclusions of law submitted by Lehigh are accepted as persuasive and controlling, as depicted at paragraphs 152-158 of Lehigh's Proposed Recommended Order. That discussion, proposed conclusions, and the authority supportive of them cited in those paragraphs are accepted and adopted herein by reference.

    
    

62. Because no liability for any discriminatory employment practice has been demonstrated, it is not deemed necessary to make detailed conclusions of law concerning this issue beyond that mentioned above. The evidence established that the Petitioner did not fulfill her duty to mitigate damages, as that duty is delineated in the authority cited in Lehigh's proposed conclusions of law. She, therefore, is not entitled to recover damages even were Lehigh liable for discriminatory treatment, which it is not.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety.

RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596

Petitioner's Proposed Findings of Fact 1-3. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses.

   
   

2. Accepted.

6-9. Accepted.

10-11. Accepted.

1. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees.

   
   

2. Accepted.

   
   

3. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh.

15-17. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone.

20-21. Accepted.

1. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated.

   
   

2. Accepted, but not material to resolution of the relevant issues presented for adjudication.

   
   

3. Accepted, but not material in this de novo proceeding.

   
   

4. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue.

26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job.

   
   

2. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact.

   
   

3. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue.

Respondent's Proposed Findings of Fact 1-2. Accepted.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record.

4-6. Accepted.

7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record.

8-10. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

   
   

2. Accepted, except as modified by the Hearing Officer's findings of fact.

   
   

3. Accepted.

   
   

4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

   
   

2. Accepted.

20-25. Accepted.

26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Ben R. Patterson, Esq. PATTERSON & TRAYNHAM

1215 Thomasville Road

P.O. Box 4289

Tallahassee, FL 32315-4289

George J. Little, Esq. 134A Constitution Lane

P.O. Box 1612 Marianna, FL 32446

John D.C. Newton, III, Esq. AURELL, RADEY, ET AL.

Suite 1000, Monroe-Park Tower

101 North Monroe Street

P.O. Drawer 11307 Tallahassee, FL 32302

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: 90-006596

Orders for Case No: 90-006596