STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT A. WHITE, )

)

Petitioner, )

)

vs. ) CASE No. 91-3618

)FCHR CASE No. 90-2143 PACE MEMBERSHIP WAREHOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 22, 1991, in Tampa, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert A. White, pro se

809 Granite Road

Brandon, Florida 33510

For Respondent: Donald C. Works III, Esquire

RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL, P.A.

200 East Broward Boulevard Post Office Box 1900

Ft. Lauderdale, Florida 33302 STATEMENT OF THE ISSUES

Whether Petitioner was unlawfully discriminated against on the basis of race by his employer when he was the temporary employee chosen for termination.

Whether Respondent articulated a legitimate, nondiscriminatory reason for Petitioner's discharge.

Whether Petitioner proved by a preponderance of the evidence that the articulated reasons were pretextual.

Whether Petitioner was otherwise discriminated against during the discharge process on the basis of race.

PRELIMINARY STATEMENT

On June 12, 1991, the Petition for Relief from an Unlawful Employment Practice filed by Petitioner, Albert A. White (White), was referred to the Division of Administrative Hearings to resolve the disputed issues of fact. The petition alleges Petitioner White was unlawfully discriminated against on the

basis of race by his employer, Respondent, Pace Membership Warehouse, Inc. (Pace). Petitioner contends that unlawful discrimination took place during two distinct phases of the discharge process: 1) When Petitioner was chosen for termination over the five other temporary employees; and 2) When the store manager called him a "damn nigger" before Petitioner was satisfied that his exit interview had been completed.

During the hearing, Petitioner presented one exhibit and testified in his own behalf. Respondent called three witnesses and filed four exhibits.

Respondent's exhibits numbered two and three were denied admission, but have been proffered as Respondent's Proffer "A" and "B", respectively.

Petitioner's Exhibit #1 has been duplicated. The document actually submitted at hearing has been returned to Petitioner and the facsimile has been substituted into evidence as agreed at hearing.

A transcript of the hearing was not ordered. Proposed findings of fact were timely submitted by both parties. Rulings on the proposed findings are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program.

   
   

2. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions.

   
   

3. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause.

   
   

4. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract.

   
   

5. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated.

   
   

6. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave.

7. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday.

   
   

8. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor.

   
   

9. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner.

   
   

10. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor.

    
    

11. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees.

    
    

12. There has been no showing that the reason stated for the termination was pretextual.

    
    

13. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired."

    
    

14. Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me."

    
    

15. The store manager then asserted they were not brothers. He called Petitioner a "damn nigger."

    
    

16. Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended.

    
    

17. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting.

    
    

18. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology.

    
    

19. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons.

20. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding.

    
    

21. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet.

    
    

22. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes and Rule 22T-9.008, Florida Administrative Code.

    
    

24. Section 760.10(1), Florida Statutes, provides in pertinent part:

    
    

    It is an unlawful employment practice for an employer:

    1. To discharge . . . or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race... .

       
       

25. In these proceedings, Petitioner is required to prove, by a preponderance of the evidence, that the proffered reason for discharge was not the true reason and race was a determining factor in Respondent's decision. On the supervisory level at which the decision was made, it appears that the proffered reason for discharge was a valid one. Respondent did not need as many temporary seasonal employees as had been anticipated and hired. Petitioner was selected for termination over the other five temporary employees because of his obstreperousness, which is not race related.

    
    

26. During Petitioner's exit interview, however, the store manager used a racial epithet in his discussion with Petitioner that was abusive and demeaning. This incident requires inquiry into whether the store manager's comment was indicative of a pervasive attitude, that either affected the conditions of employment or created a hostile atmosphere that influenced supervisory personnel with the authority to hire or fire to do so on the basis of race.

    
    

27. A review of the evidence presented at hearing indicates the store manager's use of the racial epithet was an isolated event which occurred after the termination decision was made. Petitioner had already been informed that he had been selected as the temporary employee who would have to leave. Because there was no showing that similar incidents had occurred before and could have influenced the front end supervisor's decision, the comment is unrelated to the termination decision in this case.

    
    

28. Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee has been found by the courts to be conduct that does not affect the conditions of employment to a sufficiently significant degree to create an unlawful employment practice. See Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied 406 U.S. 957, 92 S.Ct. 2058 (1972).

    
    

29. Based upon the foregoing, no discriminatory motive in the discharge decision was demonstrated. The proffered reason for discharge was not shown to

be pretextual during any phase of the decision making process. As a result, Petitioner did not meet his evidentiary burden to show unlawful discrimination took place. Arnold v. Burger Queen Systems, Inc., 509 So.2d 959 (Fla. 2d DCA 1987).

RECOMMENDATION

Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case.

RECOMMENDED this 17th day of September, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 17th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618

Petitioner's proposed findings of fact are addressed as follows:

1. Rejected. Contrary to fact. See HO #9.

   1. Rejected. Contrary to fact. See HO #5 - #7.

      
      

2. Accepted. See HO #6.

   1. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees.

      
      

3. Rejected. Contrary to fact. See HO #7 and #9.

   1. Accepted.

   2. Accepted. See HO #15.

   3. Rejected. Contrary to fact. See HO #9.

      
      

4. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6.

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Irrelevant.

   
   

2. Accepted. See HO #3.

COPIES FURNISHED:

ALBERT A WHITE 809 GRANITE RD

BRANDON FL 33510

DONALD C WORKS III ESQ

RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL

200 E BROWARD BLVD PO BOX 1900

FT LAUDERDALE FL 33302

RONALD M McELRATH EXECUTIVE DIRECTOR

FLORIDA COMMISSION ON HUMAN RELATIONS

325 JOHN KNOX ROAD BLDG F SUITE 240

TALLAHASSEE FL 32399-1570

DANA BAIRD ESQ GENERAL COUNSEL

FLORIDA 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. 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: 91-003618

Orders for Case No: 91-003618