STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNWOOD B. GRADDY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6564

)

TAMPA ELECTRIC COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on May 28, 1992, at Tampa, Florida.

APPEARANCES

For Petitioner: Lynwood B. Graddy, pro se

1221 13th Avenue

Tampa, Florida 33605

For Respondent: Stacy Frank, Esquire

702 N. Franklin Street Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of his race (black) and handicap.

PRELIMINARY STATEMENT

By Charge Of Discrimination dated May 29, 1990, Lynwood B. Graddy, Petitioner, alleges that he was denied rehiring by Tampa Electric Company (TECO), Respondent, because of his race (black) and handicap (cartilage and ligament damage in his knee). On August 9, 1991, the Florida Commission On Human Relations, after investigating the charge, entered a Notice Of Determination: No cause; and advised Petitioner of his right to request the Determination be reconsidered or request a formal hearing by filing a Petition For Relief. Thereafter Petitioner filed a Petition For Relief, and these proceedings followed.

At the hearing, Petitioner testified in his own behalf, Respondent called two witnesses, and four exhibits were admitted into evidence. Proposed findings were not timely submitted.

FINDINGS OF FACT

1. Petitioner was employed by TECO beginning on or about June 21, 1976, last worked for TECO July 18, 1980, and was discharged July 23, 1980, for failing to keep the employer notified on a daily basis of his absence and the reasons for it. (Exhibit 1)

   
   

2. Petitioner reapplied for employment on February 19, 1990, and was not rehired.

   
   

3. At the time Petitioner was discharged by Respondent, the latter had a firm policy that no former employer of TECO would be rehired.

   
   

4. This no-rehire policy was amended in 1989 (Administrative policy L-75, R 6/86)(Exhibit 4, effective 2/1/89), by changing Section IV thereof regarding former employees to allow former employees who voluntarily leave the company subsequent to the effective date of this policy to be considered for regular full time employment.

   
   

5. Petitioner was involuntarily separated from employment with Respondent well before the policy change regarding rehiring former employees took effect. Accordingly, he would not be eligible for reemployment under the policy extent at the time he was dismissed from employment or under the new policy respecting those voluntarily leaving employment.

   
   

6. Petitioner opined that he was not rehired because of his race (black) and his knee injury, but submitted no facts to support this opinion.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's race or handicap. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act Of 1964, 42 U.S.C., ss. 2000e, et seq. (Title VII). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981). As such, Federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979).

   
   

9. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   The Florida Commission on Human Relations has adopted this evidentiary model Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

   
   

10. McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. In a failure to hire or promote case, the plaintiff must prove: (1) that he belongs to a protected group; (2) that he was qualified for the job for which the employer was seeking applicants;

    (3) that he was rejected despite his qualifications; and (4) that after the rejection the position remained open and the employer continued to seek applicants with plaintiff's qualifications. McDonnell Douglass Corp. v. Green, at 802.

11. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the plaintiff's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Franco Construction Corp. v. Waters, 438 U.S. 566, 576 (1978).

    
    

12. Once the plaintiff has succeeded in proving all of the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

13. Once the employer articulates a legitimate reason for the action taken, the burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not the true reason, but was merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the hired applicant was more qualified than the plaintiff. Texas Dept. of Community Affairs v. Burdine, at 257-8.

    
    

14. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. at 253. The court recently confirmed this principle in Price-Water House v. Hopkins, 109 S.Ct. 1775 (1989), to the facts here presented.

    
    

15. Applying these legal principles to the facts here presented, Petitioner has failed to establish a prima facie case. While Petitioner showed he belonged to a protected group (black) he did not prove he was qualified for the job and was rejected despite his qualifications or that the position continued to remain open after he applied and was rejected.

    
    

16. Even had the Petitioner proved a prima facie case, the employee articulated a legitimate nondiscriminatory reason for the challenged employment decision. From the evidence submitted, it is clear that no former employee of Respondent who left the employment of TECO before 1986 was rehired, and only those who voluntarily left the employment of TECO subsequent to 1986 would be considered for re-employment. No evidence was presented that this was merely a pretext for failing to rehire Petitioner.

    
    

17. From the foregoing, it is concluded that Petitioner has failed to establish prima facie case that he was discriminated against in employment by TECO. Even if Petitioner had established such a prima facie case, TECO has articulated a nondiscriminatory reason for the decision not to rehire Petitioner. No evidence was presented that this nondiscriminatory reason was pretextual.

RECOMMENDATION

It is recommended that the Petition For Relief from employment practices filed by Lynwood B. Graddy against Tampa Electric Company be dismissed.

DONE and ORDERED this 15th day of July, 1992, in Tallahassee, Florida.

K. N. AYERS 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 15th day of July, 1992.

COPIES FURNISHED:

Lynwood B. Graddy 1221 13th Avenue

Tampa, FL 33605

Stacy Frank, Esquire 702 N. Franklin Street Tampa, FL 33601

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Margaret Jones, Agency Clerk Commission on Human Relations

325 John Knox Road Suite 240, Building F

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: 91-006564

Orders for Case No: 91-006564