STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE WARREN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3499

) AARON RENTS, INC., d/b/a ) MACTAVISH FURNITURE ) INDUSTRIES AND MR. HERSHEL ) SHEPARD, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 25, 1991. At hearing, petitioner sought and received leave to cause the tape recording of the hearing to be transcribed, before preparing his proposed recommended order, but, after petitioner advised that he had encountered difficulties in securing transcription, January 2, 1992, was established as the deadline for proposed recommended orders. Neither side has filed a proposed recommended order.

APPEARANCES

Pro Se: Wayne Warren Route 5, Box 76-B

Quincy, Florida 32351

For Respondent: Keith C. Groen, Esquire

1100 Aaron Building 3001 North Fulton Drive

Atlanta, Georgia 30363-0001 STATEMENT OF THE ISSUE

Whether respondent discriminated against petitioner on account of his race in terminating his employment?

PRELIMINARY STATEMENT

In response to petitioner's complaint that respondent discriminated against him on account of his race in terminating his employment, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "DETERMINATION: NO CAUSE" dated April 19, 1991. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to Rule 22T- 9.008(1), Florida Administrative Code, see Public Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR

transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

By his petition for relief, petitioner alleges: "I was not intoxicated, and if I was why Herschel [sic] Shepard this time did not suspend me or give me another chance. It was because like always he did not want to give me a 25 cent raise." The petition further alleged: "Also, Herschel has been bring people (mostly whites) in the assemble department and giving them more money than me." "Herschel . . . would bring a lot of white people down in our department and put them over us. And furthermore, he also brought a white guy in at the age of 19, who didn't have very much experience and made him manager."

FINDINGS OF FACT

1. According to respondent's stationery, Respondent's Exhibit No. 2, MacTavish Furniture Industries is one of six operating divisions of Aaron Rents, Inc., a (Georgia) corporation headquartered in Atlanta. Respondent regularly employs more than 15 people in Florida: The MacTavish Furniture Industries plant in Quincy has 60 to 100 employees each shift.

   
   

2. When petitioner Wayne Warren, who is black, began working for MacTavish Furniture Industries in Quincy, Florida, on April 10, 1981, his job was to place lumber on a conveyor belt. He was paid minimum wage. After four or five years he moved to the warehouse, also known as the "trim and pack" department.

   
   

3. Mr. Warren received a raise of $0.25 per hour when he went to work at the warehouse, where his chief responsibility was operating a Zimmerman suction lift. He used a boom to transfer furniture, inter alia, between a conveyor belt and the "finishing line." When the line was not operating, his duties sometimes included packing furniture and cleaning up.

   
   

4. If, as sometimes happened, petitioner reported for work intoxicated, singing loudly and getting in fights, he was sent home, and somebody else had to fill in. A drunken lift operator created unnecessary danger. Aside from the suction lift itself, saws, routers, and other equipment in the vicinity posed hazards for a person not fully in command of his faculties.

   
   

5. Clarence O'Neal, the black man who was Mr. Warren's immediate supervisor, "eased him out" on several occasions to his sister's house so he could sober up in safety. But on March 27, 1989, petitioner was unwilling to leave work. When Mr. O'Neal saw petitioner (after he heard "a commotion 1,000 feet away"), he ordered that the line be shut down, and directed petitioner to leave. Mr. Warren replied, "Kiss my ass," and Mr. O'Neal discharged him on the spot.

   
   

6. Despite this outburst and recurring bouts with alcohol, Mr. Warren was (and remains) popular with his supervisors and co-workers alike, black and white. Several people urged that he be rehired, including Johnny O'Neal, the black finishing foreman who has known petitioner all his life, and Viola Bell. In April of 1989, Hershel Shepard, the white plant superintendent who had hired petitioner originally, agreed to rehire him.

   
   

7. At least before his original termination, petitioner's pay and responsibility did not increase as rapidly as some co-workers, but the evidence did not show disparities on account of race. Mr. Warren returned to work at the same wage he had left. Before a plant-wide "blanket" raise of $0.20 per hour in May of 1990, he had already received a raise of $0.25 per hour.

8. As people were clocking in at about 7:25 a.m. on March 26, 1990, Willie Frederick, a night watchman whose shift was ending, concluded that petitioner Warren had been drinking heavily. He had to pay close attention to make out what petitioner was saying, and petitioner "just couldn't balance himself." Another co-worker, Lonnie MacMillan of Gretna, could smell alcohol and told Mr. Warren not to go into the factory in his condition.

   
   

9. Petitioner persisted noisily, punching in his time card, and eventually attracting Hershel Shepard, who told him he was "in pretty bad shape" and "better go home and get straightened up." When Mr. Warren insisted he could work, Mr. Shepard asked Mr. Frederick to take him home, and told Mr. Warren to go home so he "wouldn't have to fire him."

   
   

10. At this point, Mr. Warren placed his hand on Mr. Shepard's chest and said, "OK, fire me, mother fucker." Mr. Shepard obliged. C. J. Wilford filled the vacancy Mr. Warren's departure created. Like the man who now holds the job, Mr. Wilford, who has since died from a gunshot, was black.

    
    

    CONCLUSIONS OF LAW

    
    

11. Because FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

    
    

12. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1991), to "discharge . . . any individual . . . because of such individual's race . . . . " Section 760.10(1)(a), Florida Statutes (1991).

    
    

13. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Warren, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).

    
    

14. He has the burden initially to prove facts making out a prima facie case that he was discharged on account of race, after which respondent need only articulate a legitimate, nondiscriminatory reason for the termination in order to place upon petitioner the burden of proving that the asserted reason is pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    
    

15. Here petitioner failed to prove even a prima facie case. The evidence established the authenticity of the reasons cited contemporaneously with discharge, i.e., drunkenness and insubordination. The evidence proved that petitioner was "discharged for a series of incidents, not related to h[is race], which were reasonable grounds for h[is] discharge." Ammons v. Zia Co., 448 F.2d 117, 120 (10th Cir. 1971).

    
    

16. On the too generous assumption that petitioner met his initial burden, he plainly failed to prove that Aaron Rents, Inc. did not discharge him for the legitimate, nondiscriminatory reasons given at hearing. Nor did the evidence

prove that his termination or terms and conditions of employment were in any way related to race.

RECOMMENDATION

It is, accordingly, recommended that the FCHR deny the petition for relief. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 10th day of January, 1992.

COPIES FURNISHED:

Wayne Warren Route 5, Box 76-B Quincy, FL 32351

Keith C. Groen

1100 Aaron Building 3001 North Fulton Drive Atlanta, GA 30363-0001

Ronald M. McElrath, Exec. Director Commission on Human Relations

325 John Knox Road Bldg. F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Bldg. F, Suite 240

Tallahassee, FL 32399-1570

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. 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: 91-003499

Orders for Case No: 91-003499