STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. JOHNSON )

)

Petitioner, )

)

vs. ) CASE NO. 90-7093

) GENERAL PARCEL SERVICE OF ) FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 1, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert L. Johnson, pro se

3250 West Tennessee Street Lot 209

Tallahassee, Florida 32304

For Respondent: Charles F. Henley, Jr., Esquire

Haynsworth, Baldwin, Johnson and Harper

Post Office Box 40593 Jacksonville, Florida 32202-0593

STATEMENT OF THE ISSUES

At issue in this case is the question of whether the Respondent discriminated against the Petitioner by discharging the Petitioner because of his race and/or a handicap?

PRELIMINARY STATEMENT

The Petitioner, Robert L. Johnson, filed a Complaint of Discrimination with the Florida Commission on Human Relations. In the Complaint of Discrimination, Mr. Johnson charged that the Respondent, General Parcel Service of Florida, Inc., discriminated against him because of his race and a handicap. On September 24, 1990, the Florida Commission on Human Relations issued a "Determination: No Cause." Mr. Johnson filed a Petition for Relief from an Unlawful Employment Practice. On November 6, 1990, the Florida Commission on Human Relations filed a copy of the Petition with the Division of Administrative Hearings and requested that a formal hearing be afforded Mr. Johnson.

At the formal hearing Mr. Johnson and the Respondent presented the testimony of Harry LaNoue, Andrew Thompson, Scott Douglas Paul and Ann Beeman. Mr. Johnson also testified on his own behalf. The Respondent offered three exhibits which were accepted into evidence without objection.

On February 25, 1991, the Respondent filed Defendant's Motion for Extension of Time to File Proposed Recommended Order. Although no opposition was filed by Mr. Johnson, the undersigned was informed by telephone that Mr. Johnson was opposed to the Motion. The Respondent was informed that the Motion was granted. The Respondent filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Mr.

Johnson did not file a proposed recommended order.

FINDINGS OF FACT

1. The Respondent, General Parcel Service of Florida, Inc., is in the business of shipping, receiving and delivering goods, primarily small packages. The Respondent's headquarters are located in Jacksonville, Florida, and it has a branch operation in Tallahassee, Florida.

   
   

2. The Petitioner, Robert L. Johnson, was hired by the Respondent as a driver in late February or early March, 1989. Mr. Johnson worked out of the Tallahassee branch operation. Mr. Johnson was employed by the Respondent until October 24, 1989.

   
   

3. Mr. Johnson is a black male.

   
   

4. Between February, 1989, and June, 1989, Mr. Johnson's work was satisfactory.

   
   

5. In July, 1989, Mr. Johnson injured his back. As a result of this back injury, Mr. Johnson was absent from work until approximately July 10, 1989.

   
   

6. Mr. Johnson worked for approximately three weeks after returning to work in July, 1989, but was absent because of his back injury from the end of July, 1989, until approximately September 7, 1989.

   
   

7. When Mr. Johnson returned to work in July and in September, 1989, his physician had ordered that he not lift anything which weighed more than 25 pounds. The weight limitation was the only limitation placed by Mr. Johnson's physician on the duties Mr. Johnson could perform. There was no medical restriction placed on Mr. Johnson's duty to report to work or to report on time.

   
   

8. Beginning in June, 1989, the Tallahassee terminal manager, and Mr. Johnson's supervisor, was Harry LaNoue.

   
   

9. The first day after Mr. Johnson returned to work in July, 1989, Mr. LaNoue had Mr. Johnson answering the telephone and doing paperwork. The second day Mr. LaNoue had Mr. Johnson washing trucks, cleaning around the premises and picking up trucks. On the third day after returning to work, in addition to the duties Mr. Johnson began performing on the second day, Mr. Johnson also began delivering packages.

10. After Mr. Johnson's back injury, Mr. LaNoue personally selected the packages Mr. Johnson delivered. Mr. LaNoue attempted to insure that no package was given to Mr. Johnson which weighed more than 25 pounds. Mr. LaNoue also instructed Mr. Johnson that he was not to attempt to lift any package which weighed more than 25 pounds and that he should bring any packages which weighed more than 25 pounds back to the terminal. Mr. LaNoue also told Mr. Johnson that he was to keep all appointments with his physician and to return any packages which he could not deliver before any such appointment.

    
    

11. Although Mr. Johnson testified that Mr. LaNoue tried to pressure him into performing duties which he believed he should not be performing because of his back injury, the weight of the evidence failed to support this testimony. Mr. Johnson gave no examples of such pressure which were contrary to his physician's instructions and he contradicted his testimony by admitting that Mr. LaNoue took the actions reflected in finding of fact 10.

    
    

12. After Mr. Johnson injured his back, a couple of incidents involving Mr. Johnson's attendance occurred. Those incidents are described in Finding of Facts 13, 14 and 15.

    
    

13. At some time after Mr. Johnson returned to work Mr. Johnson's wife telephoned and told Mr. LaNoue that Mr. Johnson would miss work because his back was sore. Mr. LaNoue asked to speak to Mr. Johnson but was told that Mr. Johnson was not available. Mr. LaNoue asked Ms. Johnson to have Mr. Johnson telephone him within an hour. Mr. Johnson did not call Mr. LaNoue. About an hour later Mr. LaNoue telephoned and spoke with Mr. Johnson. Mr. LaNoue told Mr. Johnson to go to see his physician. Mr. Johnson refused. Mr. LaNoue then told Mr. Johnson to report to work. Mr. Johnson refused. Mr. LaNoue told Mr. Johnson that it was important that he be dependable and report to work.

    
    

14. On approximately September 14, 1989, Mr. LaNoue selected five or six packages he intended for Mr. Johnson to deliver. The packages weighed less than

    25 pounds. When Mr. Johnson reported to work he told Mr. LaNoue that his back was sore. Mr. LaNoue instructed Mr. Johnson to go to see his physician. Mr. Johnson said no and walked out of the building. Mr. LaNoue telephoned the Respondent's personnel director, Ann Beeman, and reported the incident. Following this telephone call, Ms. Beeman received a telephone call from Mr. Johnson complaining about his back. She instructed Mr. Johnson to go to see his physician. Ms. Beeman informed Mr. LaNoue of her instructions to Mr. Johnson. Mr. Johnson went to see his physician, telephoned Mr. LaNoue and told him that he had been told to return to work. No additional restrictions on Mr. Johnson's work were imposed by the physician.

    
    

15. After seeing his physician, Mr. Johnson returned to work. The packages that had been selected for him to deliver had already been delivered. Therefore Mr. Johnson performed other duties.

    
    

16. In October, 1989, Mr. Johnson proposed to Mr. LaNoue and Scott Douglas Paul, driver supervisor/assistant terminal manager, that he be allowed to drive a route to Valdosta, Georgia. The route involved picking up packages from a drug company located in Valdosta. The company was an important client of the Respondent. Mr. LaNoue indicated that he would give the route to Mr. Johnson. Mr. LaNoue explained to Mr. Johnson how important the client was to the Respondent and told Mr. Johnson that he must be on time and be dependable. Mr. Johnson was also reminded that it was very important that Mr. Johnson comply with the Respondent's policy that drivers call at least one hour before their assigned departure time if they would not be able to report to work on time.

17. The departure time for the Valdosta run assigned to Mr. Johnson was 5:00 p.m.

    
    

18. On October 24, 1989, the second day after the Valdosta run had been assigned to Mr. Johnson, Mr. Johnson called the Respondent's offices between approximately 4:30 p.m. and 4:45 p.m. Mr. Johnson spoke to Mr. Paul. Mr. Johnson told Mr. Paul that he had "family problems" but refused to tell Mr. Paul specifically what the problem was. Mr. LaNoue was in the same room with Mr. Paul during his telephone conversation with Mr. Johnson. Based upon hand signals between Mr. LaNoue and Mr. Paul, Mr. Paul told Mr. Johnson that, if he did not report to work that day, he need not bother coming to work again.

    
    

19. Between June, 1989, when Mr. LaNoue became the Tallahassee terminal manager, and November 1, 1989, eight individuals, including Mr. Johnson, were fired by Mr. LaNoue. Four of those individuals were black (including Mr. Johnson) and four were white.

    
    

20. The individuals fired between June, 1989, and November 1, 1989, their race and the race of the individuals, if any, who were hired to replace them are as follows:

    Terminated Employee Race Race of Replacement William Rodriquez White No Replacement

    Tom Arnold White White

    Randy Wansley White Black

    Larry Hargrove Black White

    Elmer McCoy Black Black

    John Constant White Black

    Robert Johnson Black Black

    Lester Kelly Black White

    
    

21. Mr. Johnson is a member of two classes protected under Chapter 760, Florida Statutes: race (black) and handicapped (back injury). Mr. Johnson was replaced by a member of one of the protected classes: race. The weight of the evidence failed to prove whether Mr. Johnson's replacement was a member of the other protected class Mr. Johnson is a member of: handicapped.

    
    

22. The Respondent had a nondiscriminatory, rational and business-related basis for discharging Mr. Johnson: Mr. Johnson was not dependable. Mr. Johnson failed to prove that the Respondent's reason for discharging him was a pretext.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. Section 760.10(1), Florida Statutes (1989), makes it an unlawful employment practice for an employer "[t]o discharge . . . any individual . . . because of such individual's race . . . [or] handicap . . . ." Mr. Johnson has alleged in this proceeding that he was discharged by the Respondent on the basis of his race and a handicap in violation of Section 760.10(1), Florida Statutes (1989).

25. The State of Florida, in adopting Chapter 760, Florida Statutes, has adopted the legal principles and precedents established in federal anti- discrimination laws, specifically Title VII of the Civil Rights Act of 1964, 42

    U.S.C. Section 2000e et seq. Therefore, when applying Chapter 760, Florida Statutes, federal interpretations of provisions of Title VII similar to the provisions of Chapter 760, Florida Statutes, are to be accorded great deference. Hargis v. School Board of Leon County, 400 So.2d 103 (Fla. 1st DCA 1981); and Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1979).

    
    

26. The Supreme Court of the United States has established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). In McDonnell Douglas, the Court indicated that an employee has the initial burden of proving a prime facie case of discrimination. The Florida Commission on Human Relations has adopted this burden of proof. Kilpatrick v. Howard Johnson Company, 7 FALR 5468, 5475 (FCHR 1985).

    
    

27. In cases where it has been alleged that an employee was discharged from employment for discriminatory reasons, judicial authorities have established that a prima facie case requires proof that (1) the employee is a member of a protected group; (2) the employee was discharged; (3) the employee was replaced by a person outside the protected class; and (4) the employee was qualified to do his or her job. Lee v. Russell County, School Board of Education, 684 F.2d 769 (11th Cir. 1982); and Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

28. Proving a prima facie case of discriminatory discharge serves to eliminate the most common nondiscriminatory reasons for an employee's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions by an employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).

    
    

29. Once a prima facie case of discriminatory discharge is proved, the employer must then present proof of some legitimate, nondiscriminatory reason for the discharge. The employer is only required to "produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff."

    Id. at 254-255. The employer's burden has been characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

30. Once the employer articulates a legitimate reason for its action, the discharged employee must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext.

    
    

31. In this case Mr. Johnson proved that he was a member of two different protected groups: he is black and, at the time of his discharge, he suffered from a handicap. Mr. Johnson also proved that he was qualified for the position he held and that he was the subject of an adverse employment decision.

32. With regard to the allegation that Mr. Johnson was discriminated against on the basis of race, Mr. Johnson failed to prove that he was replaced by a person in a non-protected class. The weight of the evidence proved just the opposite. Mr. Johnson was replaced by a person in the same protected class that he is in--a black male. Mr. Johnson has, therefore, failed to establish a prima facie case of discrimination based upon race.

    
    

33. With regard to the allegation that Mr. Johnson was discriminated against on the basis of a handicap, Mr. Johnson also failed to prove that he was replaced by a person in a non-protected class. Absolutely no evidence was presented during the formal hearing concerning whether Mr. Johnson's replacement suffered from a handicap. Mr. Johnson has, therefore, also failed to establish a prima facie case of discrimination based upon a handicap.

    
    

34. Even if Mr. Johnson had established a prima facie case of discrimination based upon race or handicap, the weight of the evidence supports a conclusion that the Respondent had a rational and business basis for discharging Mr. Johnson, viz, Mr. Johnson was not dependable. Mr. Johnson did not overcome this conclusion by proving that the reason for his discharge advanced by the Respondent was a pretext.

RECOMMENDATION

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

finding that there is no cause to conclude that the Respondent discriminated against Robert L. Johnson and dismissing Mr. Johnson's Petition.

DONE and ENTERED this 20th day of March, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

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 20th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file any proposed findings of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 5.

4 7.

5 6-7.

6 9.

7 9-10.

8 7 and 10.

9 12-13.

10 14.

1. Not relevant to this proceeding.

2. 14. The last sentence is hearsay and no finding of fact based on this hearsay has been made.

13 14.

14 14-15.

15 16.

16 16-17.

17 16.

18 18.

19 11.

20 Hereby accepted.

21-22 19-20 and hereby accepted.

23 Hereby accepted.

COPIES FURNISHED:

Robert L. Johnson

3250 West Tennessee Street Lot 209

Tallahassee, Florida 32304

Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ROBERT L. JOHNSON, EEOC Case No. 15D900626 FCHR Case No. 90-0763

Petitioner, DOAH Case No. 90-7093 FCHR Order No. 91-024

vs.

GENERAL PARCEL SERVICE OF FLORIDA, INC.,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Robert L. Johnson filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended.

Sections 760.01-760.10, Fla. Stat. (1989). Petitioner alleged Respondent General Parcel Service of Florida, Inc., unlawfully discriminated against him on the bases of race (black) and handicap (back injury).

The allegations of discrimination set forth in the complaint were investigated On September 24, 1990, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

On October 15, 1990, Petitioner filed a Petition for Relief from an Unlawf ul Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.0l6(l). On March 20, 1991, Hearing Officer Larry J. Sartin entered a Recommended Order of dismissal.

Public deliberations were held on June 28, 1991, in Tallahassee, Florida before the under signed panel of commissioners.

Findings of Fact

We have considered the hearing officer's Findings of Fact. There is competent substantial evidence to support the hearing officer's findings and, accordingly, the findings are adopted.

Conclusions of Law

An incorrect legal observation is made by the hearing officer in respect to establishing a prima facie case undo the McDonnell Douglas evidentiary analysis method. The hearing officer indicates that Petitioner fails to establish a prima facie case when he fails to show that someone outside of his protected class replaced him. In Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982), the court explained that a petitioner can either show that he was replaced by a person outside his protected class or that a person outside his protected class with equal or lesser qualifications was not discharged. The hearing officer overlooks the latter alternative for establishing a prima facie case. The error is harmless because, as the hearing officer correctly points out, even if Petitioner is credited with showing a prima facie case, no discrimination occurred. There were legitimate, nondiscriminatory reasons which led to the discharge.

Otherwise, we agree with the hearing officer's analysis of the legal issues and conclusion based upon the factual findings. With the above correction, we adopt the hearing officer's legal conclusions.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice. Petitioner has the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. An Explanation of the right to appeal is found in Section 120.68, Florida Statutes (1989), and in Florida Rules of Appellate Procedure 9.110(b) (c).

DONE AND ORDERED this 26 day of August 1991. OR THE FLORIDA C01MISSION ON HUMAN RELATIONS:

BY:

Commissioner Ronald P. Townsend, Panel Chairperson;

Commissioner Marc C. Little; and Commissioner Jack Robertson.

FILED this 30 day of August 1991 in Tallahassee, Florida.

Margaret A. Jone

Clerk of the Commission

Copies Furnished:

Robert L Johnson, pro se

Charles F. Henley, Jr., Attorney for Respondent Larry J. Sartin, Hearing Officer

Harden King, Legal Advisor for Commission Panel

Docket for Case No: 90-007093

Orders for Case No: 90-007093