.STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT DAWKINS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0080

)

RHODES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on February 6, 1990, before Robert

1. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Herbert Dawkins, pro se

   7055 Hennepin Boulevard

   Orlando, Florida 32818

   
   

   For Respondent: Jerry Lind, Operations Manager Rhodes, Inc.

   901 Landstreet Road.

   Orlando, Florida 32821

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Respondent is guilty of discrimination in employment based on race.

   
   

   PRELIMINARY STATEMENT

   
   

   By Charge of Discrimination dated May 16, 1989, Petitioner alleged that Respondent discriminated against him due to race when Respondent fired Petitioner. On November 16, 1990, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

   
   

   By Petition for Relief filed December 18, 1990, Petitioner alleged that Respondent discriminated against him due to race when Respondent fired Petitioner.

   
   

   At the commencement of the hearing, Mr. Lind was determined to be a qualified representative of his employer, Respondent.

   
   

   Petitioner called two witnesses and offered into evidence one exhibit. Respondent called two witnesses and offered into evidence four exhibits. An additional exhibit was admitted as Hearing Officer Exhibit 1. All exhibits were admitted into evidence.

   
   

   No transcript was filed. Respondent filed a proposed recommended order. All of the proposed findings are adopted or adopted in substance except paragraphs 2, which is rejected as subordinate, unnecessary, and repetitious, and 3, which is rejected as subordinate and unnecessary.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner has worked as a furniture finisher and repairman for over 30 years. He was hired by Respondent on October 10, 1986. At that time, he worked at Respondent's store located on U.S. Route 441 in the Orlando area.

      
      

   2. Respondent is a furniture retailer. Although Respondent does not manufacture furniture, at least in the Orlando area, Respondent employs persons to perform various work on furniture, such as to repair damage in shipment or delivery.

      
      

   3. From 1986 through the end of 1987, Petitioner was the only finisher employed by Respondent and the only person qualified to perform major repairs. During this time, Petitioner performed a variety of services, including finishing, repair, upholstery, set up, and service calls.

      
      

   4. In December, 1987, Petitioner was transferred to Respondent's Landstreet facility. In general, Respondent was experiencing increasing retail sales at this time. To meet the needs associated with increased sales activity, Respondent added another warehouse employee to perform touch- up work and new equipment, such as a spray booth, to assist finishing and repair work.

   5. As Respondent's business increased, the demands on Petitioner also increased. Petitioner possesses substantial skills with respect to furniture finishing. However, Petitioner takes considerable time to perform his work. While retail activity had remained modest, Respondent tolerated Petitioner's slow pace. But as sales increased, Respondent pressured Petitioner to increase the pace of his work.

      
      

   6. On August 16, 1988, a supervisor gave Petitioner a performance and potential summary in connection with a periodic performance review. The summary states that Petitioner's performance rating is below average. The summary identifies Petitioner's major weakness as "complain[ing] about everything and everybody." The summary notes Petitioner's slow pace, poor work habits, refusal to use new finishing aids, and refusal to give up his "old ways." The summary also states that his results were generally reasonable, but his overall results "leave something to be desired."

      
      

   7. On December 8, 1988, a supervisor gave Petitioner a disciplinary action form. The form states that, in the four months since the August 8 performance summary, Petitioner has shown no significant improvement. The form concludes that, "If there is no improvement there will be no more chances."

      
      

   8. Petitioner refused to sign the December 8 disciplinary action form. Petitioner became angry at the meeting at which the form was produced. Respondent fired Petitioner on December 28, 1988.

      
      

   9. Petitioner is a black person. However, he presented no evidence that his race was a factor in the termination.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to employment because of such individual's race. Section 760.10(1)(a), Florida Statutes. It is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or adversely affect his status as an

       employee because of his race. Section 760.10(1)(b), Florida Statutes.

       
       

   12. The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

       
       

   13. In a case involving allegations of disparate treatment, Petitioner must prove a prima facie case of employment discrimination. If he meets that burden, Respondent has the burden of going forward with the evidence to articulate some legitimate, nondiscriminatory reason for its action or failure to act. If Respondent produces such evidence, then Petitioner has the burden of going forward with the evidence to show that the proffered reasons are pretextual. See, e.g., Watson v. Fort Worth Bank and Trust, _ U.S. _, 108 S. Ct. 2777 (1988).

       
       

   14. Even if Petitioner proved a prima facie case of employment discrimination, Respondent articulated legitimate, nondiscriminatory reasons for terminating Petitioner.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner.

ENTERED this 12th day of March, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 12th day of March, 1991.

COPIES FURNISHED:

Ronald M. McElrath, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Margaret Jones, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Herbert Dawkins 7055 Hennepin Blvd.

Orlando, FL 32818

Jerry Lind, Operations Manager Rhodes, Inc.

901 Landstreet Rd.

Orlando, FL 32821

Docket for Case No: 91-000080

Orders for Case No: 91-000080