STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUDE A. WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7256

) DEPARTMENT OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida.

APPEARANCES

FOR PETITIONER: Gregory P. Farrar, Esquire

109 N. Palafox Street Pensacola, Florida 32501

FOR RESPONDENT: Rodney M. Johnson, Esquire

District Legal Counsel Department of HRS

P.O. Box 8420

Pensacola, Florida 32505-8420 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of an unlawful employment practice and, if so, what, if any, remedy is warranted.

PRELIMINARY STATEMENT

This cause arose upon the filing of a complaint of discrimination wherein the Petitioner alleges that the Respondent agency discriminated against him in violation of Chapter 760, Florida Statutes, by retaliating against him for filing an earlier claim of discrimination with the Florida Human Relations Commission and by "passing over" him for promotional positions because of his race (black). The Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and the Petitioner, at times pertinent hereto, was an employee for purposes of that Chapter. After the Florida Human Relations Commission's determination of no cause on the subject complaint, the Petitioner filed a Petition for Relief which was timely responded to by the Respondent; and the cause was duly transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. At the hearing, the Petitioner presented three witnesses. Petitioner's exhibits 1, 2 and 4 were admitted into evidence. Petitioner's exhibit 3 was excluded on grounds of hearsay.

The Respondent presented three witnesses and Respondent's exhibit A, which was admitted into evidence.

Upon conclusion of the hearing, the parties announced their intention to order a transcript of the proceedings and were accorded an extended briefing schedule for filing proposed findings of fact and conclusions of law after the filing of the transcript. For unknown reasons, the transcript in this matter was much delayed and was not filed until July 22, 1992, after which Proposed Recommended Orders, containing proposed findings of fact and conclusions of law, were timely filed on August 13, 1992. Those proposed findings are treated in this Recommended Order and once again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Claude A. White, is a black man employed by the Department of Health and Rehabilitative Services, the Respondent ("Department"), as a Detention Care Worker II at the Department's Juvenile Justice Center, a facility where the Department keeps juveniles under involuntary detention. The Petitioner has been so employed for approximately 17 years. The Respondent is an agency of the State of Florida and an employer within the meaning of Chapter 760, Florida Statutes. At all times pertinent hereto, it has been the employer of the Petitioner, Claude A. White.

   
   

2. In approximately December, 1989, the Petitioner became involved in an altercation with a "client " or "inmate" of the detention center during his duty in the dining hall at lunchtime. Because a client was not obeying rules and policies, the Petitioner began escorting the client to his dormitory room.

   While they were walking down the hall, an argument or altercation ensued between the client and the Petitioner. The Petitioner maintains that the client, R.H., swung around toward him to face him and the Petitioner then put his hands up to protect his face, accidentally striking the client on the cheek as he was doing so. The Petitioner's supervisor, Mr. Barrett, maintains that he observed the Petitioner strike R.H., the inmate, with his fist. An investigation ensued by the Department and the Petitioner's supervisory personnel with the result that on January 19, 1990, the Petitioner was terminated for striking the child in question, as an incident of child abuse.

   
   

3. The Petitioner filed an action with the Public Employees Relations Commission seeking to be reinstated in his employment position and to receive back pay and all due benefits. Ultimately, the Petitioner prevailed in that case and was reinstated on July 21, 1990 to his employment position, with award of back pay.

   
   

4. The Petitioner alleges that in 1989, he sought a promotion to a supervisory position and was not promoted to that position but, rather, another person was promoted to it. The Petitioner then apparently filed a discrimination complaint with the Florida Commission on Human Relations and now alleges that he was retaliated against for filing that claim by the fact of and the manner in which he was terminated as a result of the child abuse incident allegedly occurring on December 29, 1989, for which he was terminated on January 19, 1990. The Petitioner also alleges that since his termination and

   reinstatement, he applied for another supervisory position, but that a white employee was promoted to that position.

   
   

5. The Petitioner also contends that he overheard Mr. Barrett, his supervisor, tell Mr. Voldheim, in Mr. Barrett's office, that Mr. Voldheim had to find a basis to "terminate that nigger", meaning the Petitioner. The Petitioner also maintains that Mr. Barrett had written a note to Mr. Rivenbark, his superintendent, stating "there are too many niggers working here...we are going to change that...". Henry Bennett, a co-worker with the Petitioner who has known the Petitioner for approximately ten years, testified. The Petitioner had maintained that Mr. Bennett had told him of the memo or note allegedly written by the supervisor, Mr. Barrett, referencing "too many niggers" employed at the facility. In fact, Mr. Bennett testified that he had never told the Petitioner of any such memo and had never heard Mr. Barrett use the racial epithet "nigger". In fact, Mr. Bennett said he had never seen any memoranda whatever referencing race at all, including the use of that term. Mr. Bennett would have been incensed had he seen the use of such a term by the supervisor, Mr. Barrett, because he is black also, however Mr. Bennett saw no such reference. Mr. Barrett, in his own testimony, also, denied ever using the word "nigger", either verbally or in writing.

   
   

6. Mr. Barrett's testimony establishes that during a recent alleged child abuse claim by one of the detention center inmates against the Petitioner, Mr. Barrett, in fact, believing that the Petitioner was not guilty, let him continue working without even temporarily suspending him, as is the normal practice.

   This fact tends to show that Mr. Barrett is not biased against the Petitioner and is not seeking an opportunity to retaliate against the Petitioner for the Petitioner's past civil rights activism on the job, which he admits and for his past filing of discrimination claims.

   
   

7. Mr. Don Bell, the personnel director for HRS District I and the custodian of the employee records for the respondent agency, testified. He illustrated a comparison between March, 1989 through March, 1992, covering the time periods at issue in this case, showing the black versus white racial ratios, by position, for employees at the detention center. All positions, both that of superintendent and assistant superintendent, including various other supervisory positions, were thus shown to be occupied by more blacks than whites. In fact, the black/white ratio of employment positions at the facility presently is 19 blacks and 11 whites. Formerly, there were as many as 27 blacks and 3 whites. The increase in white employees and corresponding decrease in black employees was not shown to be other than a natural occurrence through such things as, for example, transfers, voluntary terminations of employment, or even involuntary terminations. The change in the number of black employees was not shown to be the result of any intent or practice of discrimination exercised by the Respondent employer, however and the number still shows that a majority of blacks hold positions at the detention center. Mr. Barrett established that the reason the Petitioner was not promoted to the supervisory position of which he complained was not on account of his race, not because of any effort to retaliate against him for his civil rights activism on the job or his past filing of claims against the employer, but rather was due to his record of inadequate behavior on the job, and that poor conduct was the reason he was denied the promotion.

   
   

8. Mr. Barrett's testimony, concerning his not having used the term "nigger", in writing or verbally, was corroborated by that of Mr. Bennett, a black employee, who the Petitioner testified told him of the alleged memo where Mr. Barrett was supposed to have indicated that there were too many "niggers"

   employed at the facility. Mr. Barrett's and Mr. Bennett's testimony is accepted, as is that of Don Bell, the personnel director. The Petitioner's testimony is not credited, as it is not judged credible when compared to that of Mr. Bennett, Mr. Barrett and Mr. Bell. Mr. Bennett's testimony particularly contradicts that of the Petitioner, and there was absolutely no motive to lie, on the part of Mr. Bennett, demonstrated in the evidence of record.

   
   

9. The Petitioner has demonstrated that he had to borrow money during the time he was out of work, after he was dismissed for striking the minor inmate, and that he has never been recompensed for the interest he paid on that borrowed money, that he was embarrassed as a result of the firing incident and has missed chances at promotion. However, based upon the testimony of the above-named witnesses, the Hearing Officer having weighed the candor and credibility of all witnesses in reaching that decision, it has not been established that the Petitioner was not promoted due to any discriminatory intent on account of his race nor on account of retaliation for his having filed past claims against his employer. It has not been shown that the termination of the Petitioner, with regard to the "child striking" incident, was levied against the Petitioner by the Respondent in retaliation for any past claims or past civil rights activism or other dispute with the employer. Although the Petitioner demonstrated that he failed to get the supervisory position and established that a white man was promoted to that position, who had been working for the employer for a shorter period of time, it was not shown that the hiring of the white person was done for any discriminatory motive. In view of the fact that at all times pertinent to this proceeding, the Respondent has employed significantly larger numbers of black employees than white employees across most of its position categories, the mere fact that a white person was promoted to the supervisory position in question instead of the Petitioner does not establish a prima facie case of discrimination. Even if it had, the Respondent established a legitimate business reason for the failure to promote the Petitioner, in that the Petitioner's attitude and conduct was not sufficiently satisfactory to justify his promotion to a supervisory position like that in question. Further, the testimony of Mr. Bennett and Mr. Barrett established that there was no ongoing policy or motive on the part of Mr. Barrett or other supervisory personnel to retaliate against the Petitioner for his past activist attitude and conduct in the work place nor for his past filing of claims of discrimination against the employer. In fact, the testimony of Mr. Bennett shows that the Petitioner was simply not telling the truth about the alleged written memo concerning the so- called issue of "too many niggers" being employed at the facility.

   
   

10. An employee's attitude and conduct on the job are an important part of his job performance and have a direct and important bearing on whether that employee is adequately performing his job. If one employee, even assuming they were equally qualified (which was not established by the Petitioner) has a record of improper behavior and attitude on the job and the other employee is promoted to a position at issue, the employee with the poorer behavior or conduct record cannot, thus, show discriminatory intent or motive even if the employee promoted happened to be white because such is a legitimate business reason not to promote the employee situated like the Petitioner. Moreover, although the employee, Mr. Kreitzer, who was promoted instead of the Petitioner, is white and had been there only a short period of time (or something over six months) whereas the Petitioner had been employed for 17 years, the Petitioner did not establish that the two employees, he and Mr. Kreitzer, were similarly situated because he did not establish that their qualifications were equal or that he was better qualified than Mr. Kreitzer, other than in time of service, which is only one criteria in considering qualifications.

11. In summary, the Petitioner did not demonstrate that his earlier termination and his failure to be promoted to the supervisory position in question was due to discriminatory reasons. He has not shown that he was accorded disparate discriminatory treatment, as opposed to white persons similarly situated, because although the employee who got the promotion in question was white, it was not shown that the Petitioner and that employee were equally qualified or that the Petitioner was better qualified than the white person who was promoted and thus that they were similarly situated. Thus, a prima facie case has not even been established. The Respondent demonstrated that there was no retaliatory intent with regard to the "child striking incident" because a later incident occurred when the Petitioner could have been accused of child abuse because of an altercation with a minor inmate, and Mr. Barrett allowed the Petitioner to continue working when he could have suspended him, at least temporarily, during an investigation of the incident. This shows a lack of retaliatory motive. Moreover, with regard to the termination incident, the Petitioner did not establish that white employees who were involved in similar altercations with inmates and accused of child abuse had not been terminated. Thus, no disparate treatment has been demonstrated.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. The above Findings of Fact show that no prima facie case of discrimination for purposes of Section 760.10, Florida Statutes, has been established. The Petitioner has not established that he nor blacks have been subjected to disparate treatment, including different degrees or strictness of discipline than whites. He has not demonstrated that he was similarly situated to the white employee who received the supervisory promotion, which the Petitioner also sought. Other than a longer time of service than the white employee, he did not establish that he was just as qualified for the position as the white employee. The above Findings of Fact also demonstrate that the termination incident, because of the alleged striking of the minor inmate, was not fraught with retaliation for the filing of an earlier discrimination claim nor because of the Petitioner's prior "civil rights activities" in the work place. Neither was it shown to be on account of his race. It was not shown that the Respondent employer, including the Petitioner's supervisor, Mr. Barrett, has had or has a policy of terminating blacks whenever possible in order to achieve more whites on the payroll. Although the number of black employees has declined from 27 to 19 in the last several years (the time period is not shown clearly in the record), there are still 19 blacks and only 11 whites employed at the facility.

    
    

14. The record evidence also shows that Mr. Barrett genuinely believes that the Petitioner had struck R.H. in the face, which under consistent HRS policy is a sufficient ground to terminate any employee for striking an inmate, particularly a minor inmate. His testimony to this effect has been accepted. The record evidence also shows that the Petitioner's performance as an employee was only marginal, that his attitude and conduct was deficient and was the primary obstacle to his obtaining the promotion in question, rather than his race or any motive on the part of his employer to retaliate against him for past filing of claims. Thus, the above considerations and the Findings of Fact show that even had the Petitioner established a prima facie case of disparate treatment and, therefore, discrimination, the Respondent employer has, with competent credible evidence, articulated a good and sufficient business, non-

    discriminatory reason for the termination and for the decision to promote a white employee to the supervisory position in question, as opposed to the Petitioner. The superintendent was an eye witness to the blow to the face of the child by the Petitioner and based upon consistent, prior Department policy, that was adequate justification to immediately process the Petitioner for discharge for striking the client. It was an independent, legitimate business basis for termination wholly apart from race or any motive to retaliate against the Petitioner, which was not proven anyway. Consequently, no disparate treatment of the Petitioner versus white employees similarly situated has been demonstrated, nor has any discriminatory motive on the part of the employer been shown. Consequently, the Petitioner has failed to carry his burden of proof.

    
    

15. The Respondent filed a motion for attorney's fees and costs, pursuant to Section 120.57(1)(b)5., Florida Statutes. It has not been shown that this is a frivolous claim because Rule 22T-9.09, Florida Administrative Code, of the Human Relations Commission allows petitions involving redeterminations of no cause to be transmitted to this forum for hearing.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore,

RECOMMENDED that a Final Order be entered holding that no discriminatory employment action occurred and that the Petition be dismissed in its entirety and that the motion for fees and costs be denied.

DONE AND ENTERED this 29th day of September, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 29th day of September, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7256

Petitioner's Proposed Findings of Fact

1-5. Accepted, but not in themselves materially dispositive.

6. Rejected, as contrary to the preponderant weight of the evidence.

7-9. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Accepted.

2. Rejected, as not in accordance with the preponderant weight of the evidence.

12-16. Accepted, but not in themselves dispositive of the material issues presented.

1. Rejected, as contrary to the preponderant weight of the evidence.

2. Rejected, as not supported by competent, substantial evidence of a preponderant nature.

Respondent's Proposed Findings of Fact

1-10. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of facts on this subject matter.

2. Accepted.

3. Accepted.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Gregory P. Farrar, Esq.

109 N. Palafox Street Pensacola, FL 32501

Rodney M. Johnson, Esq. District Legal Counsel Department of HRS

P.O. Box 8420

Pensacola, FL 32505-8420

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-007256

Orders for Case No: 91-007256