STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEMETRIO A. WALTERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7797

) GREAT SOUTHWEST CORPORATION,)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on February 5, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Demetrio A. Walters, Pro se For Respondent: Charles R. Nixon, Esquire

Vice-President/General Counsel

Rooney Enterprises, Inc. 3333 Lee Parkway

P.O. Box 19000 Dallas, Texas 75219

STATEMENT OF THE ISSUES

Whether Respondent, Great Southwest Corporation, discriminated against the Petitioner, Demetrio A. Walters, when Respondent terminated Petitioner's employment.

PRELIMINARY STATEMENT

This cause had its inception when the Petitioner, Demetrio A. Walters was discharged by his immediate supervisor, Gene Raulerson, who was acting for the Respondent, Great Southwest Corporation, for insubordination and failure to follow instructions necessary to carry out his daily activities. Thereafter, the Petitioner filed a charge of discrimination, wherein he alleged that he was discharged because of his race (black) and his national origin (hispanic).

At the hearing, the Petitioner testified on his own behalf. Petitioner's exhibits 1 and 2 were received into evidence. Respondent presented the testimony of James Clemmensen, Mayda Dallman and Thomas Canzano. Respondent's exhibits 1, 2 and 3 were received into evidence.

No transcript was filed with the Division of Administrative Hearings. The Petitioner did not submit any Proposed Findings of Fact and Conclusions of Law. The Respondent timely filed what is entitled "Hearing Officer's Findings of Fact and Recommended Order". A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant findings of fact are made:

1. Petitioner, a black, hispanic male, was employed by Respondent sometime around September 1, 1988 as a journeyman carpenter on the Respondent's Tampa Bay Convention Center Project.

   
   

2. Respondent is an employer within the meaning of the Section 760.02(6), Florida Statutes.

   
   

3. Petitioner's employment was terminated on March 31, 1989, and Respondent's stated reason for Petitioner's discharge was insubordination and failure to follow instructions necessary to carry out his daily activities.

   
   

4. Respondent is not a party to any formal collective bargaining agreement. Therefore, it was not unusual for the Respondent to require carpenters to perform work which normally would have been otherwise performed by laborers or some other craft. However, this policy was applied to all carpenters working on the Tampa Bay Construction Project regardless of the race or national origin.

   
   

5. Petitioner resented being required to perform work normally reserved for laborers or other crafts, and, as a result, this created problems between the Petitioner and his immediate supervisor.

   
   

6. Petitioner did not always follow instructions given to him by his immediate supervisor to perform a certain task or to perform a certain task in a certain way, and on occasion would be absent from his work station during working hours without permission from his immediate supervisor.

   
   

7. At all times material to this proceeding, Gene Raulerson was the Petitioner's immediate supervisor while working with Respondent on the Tampa Bay Construction Center Project.

   
   

8. Gene Raulerson frequently directed profanity at all of his subordinates, and treated all of his subordinates in a rude and disrespectful manner.

   
   

9. Raulerson cursed and called Petitioner offensive names, and even called Petitioner's mother an offensive name, and treated Petitioner in a rude and disrespectful manner. However, there was no evidence that Raulerson treated Petitioner any differently that other carpenters on the project because of his race or national origin or that Raulerson discharged the Petitioner because of his race or national origin.

   
   

10. Respondent has an affirmative action program that prohibits discrimination against any individual based upon inter alia race or national origin.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice to discharge or otherwise discriminate against any individual because of the individual's race or national origin.

    
    

13. In a discrimination case, the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate non-discriminatory reason for the action complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reason, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,

    67 L Ed. 207 (1981). To establish the prima facie case, Petitioner must present facts which raise "an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254.

    
    

14. In order to present a prima facie case of discrimination, the Petitioner must show: (1) he is a member of a protected class; (2) he was capable of performing his job satisfactorily; and (3) he was discharged. Johnson v. Yellow Freight Systems, Inc. 734 F. 2d 1304 (8th Cir. 1984). The dispute centers not on Petitioner's capabilities, but on his actual job performance. Considering the evidence here presented in the light most favorable to Petitioner, it shows that Petitioner was capable of satisfactory

    performance on the job but failed to perform his assigned duties satisfactorily. The Petitioner established a prima facie case of discriminatory discharge.

    
    

15. There is substantial competent evidence in the record to show that Petitioner failed to follow instructions concerning assigned duties. The Respondent has articulated a sufficient reason for Petitioner's discharge and has thereby rebutted Petitioner's prima facie case.

    
    

16. Petitioner argues that Respondent's stated reason for his discharge are merely a pretext for unlawful discrimination. However, Petitioner has presented no evidence that he was treated any differently than other employees that were non-black or non-hispanic or that his discharge was based on his race or national origin.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Demetrio A. Walters, was not discharged due to his race or national origin in violation of Section 760.10, Florida Statutes, and that the Petition for Relief be dismissed.

DONE and ENTERED this 8th day of March, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

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 8th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

Petitioner has submitted a notarized statement that he is black and hispanic and has no problems working with people of any color or race, with a list of names of people attached that he has worked with. Although it would be stretching it to consider this as Proposed Findings of Fact, I have found the Petitioner to be black and hispanic and the balance of this statement is not relevant or material.

Rulings on Proposed Findings of Fact Submitted by the Respondent

respectively.

COPIES FURNISHED:

Dana Baird, General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Ronald M. McElrath Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Demetrio A. Walters 1716 Hartley Road

Tampa, FL 33619

Charles R. Nixon, Esquire

Vice President/General Counsel Rooney Enterprises, Inc.

3333 Lee Parkway

P.O. Box 19000 Dallas, TX 75219

James Clemmenen, Vice President Great Southwest Corporation Post Office Box 24748

Tampa, FL 33623-4748

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: 90-007797

Orders for Case No: 90-007797