STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIUS MCKINNON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0477

)

THE BOARD OF COUNTY )

COMMISSIONERS, OKALOOSA ) COUNTY/OKALOOSA AIR TERMINAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on August 28, 1991, in Mary Esther, Florida.

APPEARANCES

For Petitioner: Julius McKinnon, pro se

218 Ajax Drive

Fort Walton Beach, Florida 32548

For Respondent: Robert L. Norton, Esq.

121 Majorca Avenue

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.

PRELIMINARY STATEMENT

On May 21, 1990, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that Respondent terminated Petitioner's employment as the result of Petitioner's race.

On December 13, 1990, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

On January 10, 1991, Petitioner filed a Petition for Relief with the Commission, requesting a redetermination of his discrimination charge. After the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, an Amended Petition For Relief was filed. The amended petition, dated April 9, 1991, alleged that Respondent had committed an unlawful employment practice with respect to termination of Petitioner's employment on the basis of race in violation of Chapter 760, Florida Statutes.

By answer dated April 17, 1991, Respondent denied all allegations of the Amended Petition For Relief.

At the final hearing, Petitioner presented the testimony of five witnesses, including himself, and two evidentiary exhibits. Respondent presented the testimony of one witnesses and seven evidentiary exhibits.

No transcript of the final hearing was filed with the Division Of Administrative Hearings, however, in accordance with Rule 22I-6.031, Florida Administrative Code, the parties requested an extension of time for the filing of proposed findings of fact until September 18, 1991, thereby waiving the provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact submitted by the parties are addressed in the appendix of this recommended order.

FINDINGS OF FACT

1. Petitioner is Julius McKinnon. He was employed by Respondent for more than 13 years. At the time of his dismissal from employment with Respondent's airport police department, Petitioner held the rank of lieutenant and supervised the five man force. Petitioner is black.

   
   

2. On December 5, 1989, Petitioner was called to the office of Coy Thomason, Respondent's airport manager. Petitioner was informed of his rights and questioned regarding allegations of a white female employee of a restaurant at the airport that Petitioner had made sexual overtures to her, inclusive of nonconsenual touching of her body.

   
   

3. The alleged battery by Petitioner was reported by the restaurant employee, Ruby Darlene Howard, to other airport law enforcement officials of the airport as having occurred late in the evening after the close of business on November 25, 1989.

   
   

4. Following the conference with Thomason, Petitioner was placed, effective December 9, 1989, on an indefinite suspension with pay, subject to later possible termination of employment.

   
   

5. Petitioner's employment was terminated on March 9, 1990, pursuant to a March 5, 1990 letter of termination to Petitioner signed by Thomason.

   
   

6. The primary basis for termination of Petitioner's employment, as established by Thomason's testimony at the final hearing, was the airport manager's belief that Petitioner had engaged in inappropriate sexual conduct with regard to the female coffee shop employee and had assaulted the employee.

   
   

7. Thomason's testimony further establishes that Petitioner had been previously counselled or disciplined on various occasions for work related matters, including a three day suspension for failure to report to work and a reprimand for inappropriate comments to a female police officer. Thomason's testimony was credible, candid and direct. That testimony establishes that Thomason did not terminate Petitioner's employment on the basis of the employee's race.

   
   

8. Two white male police officers presently employed by Respondent's airport authority also have disciplinary histories. Arthur Badger resigned in

   1988 when faced with possible disciplinary action at that time for drunken driving. Badger was rehired 20 months later following alcohol abuse counselling and assurances to Respondent that he had recovered from his alcoholism problems.

   
   

9. Another of Respondent's white police officers with the airport authority is Terry Masters. Masters, employed by Respondent's airport authority for more than five years, was suspended by Respondent for 28 days following an off-duty incident where Masters was alleged to have publicly urinated in front of a female at the airport while in an intoxicated state. Although allegations against Masters were denied by him, he nevertheless was suspended by Respondent.

   
   

10. Following Petitioner's termination, Respondent has employed no black police officers at the airport terminal due to the absence of pending applications from qualified individuals.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

    
    

13. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for Petitioner's termination. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason for termination is pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

14. In this case, Petitioner has not shown a prima facie case of employment discrimination. Petitioner presented the testimony of two of Respondent's white employees ostensibly to show that peccadillos of those employees did not result in discipline equal to that accorded his situation. That testimony establishes that Respondent disciplines errant employees, but fails, even without regard to the disparate nature of Respondent's alleged misconduct in contrast with the offenses of the two employees, to reflect discriminatory treatment on the basis of race.

    
    

15. Notably, one of those employees continued employment only after a period of suspension for an episode involving alcohol intoxication. The other employee resigned his employment following a drunken driving conviction and was rehired after a period of twenty months during which he received alcohol abuse counselling and gained control of his drinking problem.

    
    

16. Respondent's termination of Petitioner's employment was the result of the perceived judgment of his supervisor, the airport manager, that Petitioner had committed a battery of a sexual nature upon a female employee of a business at the airport.

    
    

17. Even if it is assumed that Petitioner has presented a prima facie case, Petitioner's argument that Respondent's termination reasons are demonstrably pretextual as a result of Respondent's failure to present direct testimony from Ruby Darlene Howard at the final hearing, is unpersuasive. It is

    Petitioner who bears the burden of presenting a prima facie case and, later, rebuttal evidence demonstrating the pretextual nature of any termination reasons stated by Respondent. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981).

    
    

18. Petitioner's argument that his employment was terminated on the basis of his race is unsupported by a preponderance of direct admissible evidence.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief.

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

DON W. DAVIS

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 October, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0477

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1. Adopted in substance as to first sentence, remainder rejected as subordinate to hearing officer's findings and on the basis of relevancy.

2.-4. Rejected as unnecessary to result. 5.-7. Adopted in substance.

1. Adopted by reference.

2. Adopted as to the first sentence. The second sentence is rejected on the basis of relevancy.

3. First sentence adopted and supplemented. Remainder rejected on basis of relevancy.

4. Rejected, relevancy.

5. Adopted in substance, though not verbatim.

PETITIONER'S PROPOSED FINDINGS

Proposed findings submitted by Petitioner consisted of a three page letter containing 17 unnumbered paragraphs. Those paragraphs have been numbered chronologically 1-17 and are addressed as follows:

1. Rejected, procedural, argumentative, legal conclusion. 2.-3. Adopted in substance, not verbatim.

1. Adopted in substance as to first 2 sentences. Remainder rejected as opinion testimony relating to credibility of a person whose reputation was not in issue due to the failure of either Respondent or Petitioner to call this person to the witness stand.

2. Adopted in substance as to first sentence, remainder rejected for same reason as set forth regarding proposed finding #4.

3. Rejected, relevance.

4. Rejected, not supported by the weight of the evidence. Indeed, Petitioner could well have called these adverse witnesses to the stand in order to demonstrate their lack of credibility and any racial prejudice on the part of the airport manager for believing them. Petitioner chose not to follow such a course of action.

5. Rejected, again Petitioner seeks to impeach the testimony of a non- testifying witness.

6. The import of this proposed finding is rejected on the basis of Petitioner's lack of credibility.

7. Rejected, not supported by the weight of the evidence.

8. Rejected, argumentative, hearsay. 12.-13. Rejected, relevance.

1. Rejected, credibility.

2. Rejected, argumentative, cumulative, unsupported by weight of the evidence. 16.-17. Rejected, relevance and argumentative.

COPIES FURNISHED:

Donald M. McElrath Executive Director

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Julius McKinnon

218 Ajax Drive

Fort Walton Beach, FL 32548

Robert L. Norton, Esq.

121 Majorca Avenue Coral Gables, FL 33134

Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

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 consult with 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: 91-000477

Orders for Case No: 91-000477