STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES ANDREWS, JR., )
)
Petitioner, )
)
v. ) CASE NO. 92-2063
)
TALLAHASSEE COCA-COLA )
BOTTLING COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on June 8-10 and 16, 1993, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Marie A. Mattox
Attorney at Law 3045 Tower Court
Tallahassee, Florida 32303
For Respondent: William R. Radford
Attorney at Law
5300 First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2339
STATEMENT OF THE ISSUES
The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
PRELIMINARY STATEMENT
Andrews presented the testimony of Mehran Abizadeh, Kelvin L. Dibbles, Roosevelt Humphrey, Donald R. Ward, Bennetta Brown Davis, Edward James Brown, Samuel L. Heyward, Jeff Posey, Elijah Sharpe, Johnnie Mae Marshall, Tisa Karen Kelley, William Beck, Jr., Rickey Glenn, James Andrews, Jr., Dextrix Jerome Demps, and Curtis A. Heard. Andrews offered his own testimony and that of Kelvin Dibbles and Johnson Crutchfied, Sr., on rebuttal. Joint exhibits 1 and 2 were admitted, as were Petitioner's Exhibits 1-10, 14, and 15.
Coke presented the testimony of Thomas W. Bauman, Cecil M. "Doc" Roddenberry, Sue Rosenthal Rubin, Christen Cheshire, Lee Burk, Jeanie Benton, and Susan Gail Lingerfelt. Respondent's Exhibits 1-3 were admitted in evidence.
The transcript of the proceedings was filed on July 7, 1993. The parties filed their proposed findings of fact and conclusions of law on or before August 23, 1993. Their proposed recommended orders are accepted as timely filed. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977.
When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance.
Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance.
Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews.
Reports of Sexual Harassment
Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin).
In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor.
Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived.
In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine.
During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her.
Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event.
Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act.
In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself.
While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions.
Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black.
Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job.
No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work.
In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned.
On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her.
Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews.
The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately.
After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him.
Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action.
Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt.
Coke's Investigation
After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews.
Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews.
Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations.
Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names.
Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her.
Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around.
Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous.
Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt.
Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate.
Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt.
On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking.
Suspension and Termination
Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials.
Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office.
They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details.
As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?"
As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman
also had an automatic front door lock installed so that no one could enter the front office without being pre-screened.
The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment.
On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager.
Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male.
Other Victims Come Forward
While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews.
Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him.
Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it.
Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her.
Andrews' Claims of Discrimination
Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor.
Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey.
Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees.
Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred.
Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence.
Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Andrews alleges that Coke violated the Florida Human Rights Act of 1977, Sections 760.01-760.10, Florida Statutes, by terminating him because he is black. Coke asserts that the termination was based on a good faith belief that Andrews had engaged in multiple acts of sexual misconduct and harassment against female employees.
Section 760.10 is patterned after Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. Sec. 2000E, et seq. See School Board of Leon County
v. Hargis, 400 So.2d 103, 108 (Fla. 1st DCA 1981). When a state law is patterned after a federal law on the same subject, the Florida law will be afforded the same construction as in federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991); Florida Department of Corrections v. Chandler, 582 So.2d 1883 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990); National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988); Hargis, supra; and Pasco County School Board v. Public Employee's Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1979).
The applicable model of proof in discrimination cases based on disparate treatment was established, and later clarified, by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). That model of proof is:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." . . .
Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, supra, 450. U.S. at 252-3. The ultimate burden of proof in regard to the issue of discrimination remains with the petitioner at all times. Burdine at 253; Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). That ultimate burden requires proof of intentional racial discrimination. Burdine, supra; see also Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843 (1977).
To present a prima facie case, Andrews must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Burdine at 254. The prima facie case serves to eliminate the most common nondiscriminatory reasons for the petitioner's disparate treatment. See Teamsters, supra, at 358 and n. 44.
There are two basic methods by which a petitioner may establish a prima facie case of discrimination pursuant to Section 760.10. One is by proving direct evidence of discrimination. If Andrews can show by direct evidence that race motivated the decision to terminate him, then the burden of persuasion shifts to Coke to prove by a preponderance of evidence that they would have made the same decision even had they not allowed race to play a part in the decision. Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); EEOC v. Beverage Canners, Inc., 897 F.2d 1067 (11th Cir. 1990; Wall v. Trust Co. of Georgia, 946 F.2d 805 (11th Cir. 1991); Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir. 1986); Hill v. MARTA, 841 F.2d 1533 (11th Cir. 1988). Direct evidence of discrimination consists of evidence of actions or remarks of an employer which reflect a discriminatory attitude. See Hill, supra at 1539, and Caban-Wheeler v. Elsen, 904 F.2d 1549 (11th Cir. 1990).
Direct evidence does not exist in this case. Direct evidence of discrimination is evidence which proves the existence of facts at issue without inference or presumption. Al Hashimi v. Scott, 756 F.Supp. 1567 (S.D. La. 1991); see also Thompkins v. Morris Brown College, 752 F.2d 558, 563 (11th Cir. 1985).
Andrews has carried his burden of proving a prima facie case by showing that he is black and he was terminated, but was otherwise qualified for the position. While Andrews did not and could not prove that he was replaced by a person from a non-protected class, he is still entitled to the inference that race played a part in the termination. The burden shifts to Coke to show a legitimate, nondiscriminatory reason for the termination.
Coke has conclusively proven its legitimate, nondiscriminatory reason for the termination, i.e., its good faith belief that Andrews had engaged in repeated, multiple acts of sexual misconduct against several subordinate female employees.
In Hayes v. Martin Marietta Data Systems, 8 FALR 2715 (FCHR 1986), the Florida Commission on Human Relations dismissed a claim for relief which involved facts virtually identical to those here. Hayes was discharged after two female employees and a job applicant accused him of sexual harassment. He claimed that the harassment charges were a mere pretext and that his discharge was racially motivated. He further alleged that there was conspiracy against him and that other white employees were guilty of similar conduct, but were treated less harshly than he.
In dismissing Hayes' complaint, the Commission found that the allegations against white employees were no more than rumors or consensual relationships and that no complaint had ever been filed against those individuals. The Commission concluded that employer had committed no discrimination by choosing to believe the women's reports instead of the denial by and claims of Hayes.
A similar result and rational is found in McKinnon v. Board of County Commissioners, Okaloosa County, 14 FALR 2460 (FCHR 1992). There the claim of racial discrimination was dismissed based on the employer's "perceived judgment" that the employee had engaged in sexual misconduct, even though the employer did not prove that the sexual misconduct actually happened. The employer's motivation for the employment decision cannot be to discriminate.
Even if the employer erred in crediting the stories of the accusers, such error, if made in good faith and not based on impermissible considerations, is sufficient to shift the burden back to the petitioner to rebut the motive articulated by the employer. See Balazs v. F.I.T. Aviation, Inc., DOAH Case No. 88
Case No. 87-4798 (Recommended Order Jan. 1, 1989).
In this case, Andrews has not rebutted Coke's legitimate reasons for the termination. Coke was not shown to have been motivated by any impermissible, racially-based consideration in its decision to terminate Andrews for sexual misconduct. Having failed to carry his burden of proof, Andrews' Petition for Relief should be denied and dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order denying and dismissing the Petition for Relief filed by James Andrews, Jr.
DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
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 23rd day of September, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr.
1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47).
2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38,
39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order.
3. Proposed finding of fact 52 and 55 are irrelevant.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co.
1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35).
2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36,
40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are
subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113,
117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence.
4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46,
54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120,
122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact.
COPIES FURNISHED:
Marie A. Mattox Attorney at Law 3045 Tower Court
Tallahassee, Florida 32303
William R. Radford Attorney at Law
5300 First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2339
Sharon Moultry, Clerk
Florida Commission on Human Relations Building F, Suite 240
325 John Knox Road
Tallahassee, Florida 32303-4149
Dana Baird General Counsel
325 John Knox Road Building F, Suite 240
325 John Knox Road
Tallahassee, Florida 32303-4149
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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES ANDREWS, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 92-2063
)
TALLAHASSEE COCA-COLA )
BOTTLING COMPANY, )
)
Respondent. )
)
NOTICE OF CORRECTION
It has come to the attention of the undersigned that the Appendix to the Recommended Order filed September 23, 1993, contained a clerical error. A corrected Appendix is attached to this notice.
October 7, 1993 (Date) DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SunCom 278-9675
COPIES FURNISHED: | ||
Marie A. Mattox | Dana Baird | |
Attorney at Law | General Counsel | |
3045 Tower Court | 325 John Knox Road | |
Tallahassee, Florida | 32303 | Building F, Suite 240 |
325 John Knox Road | ||
William R. Radford Tallahassee, Florida 32303-4149 Attorney at Law
5300 Southeast Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2339
Margaret Jones, Clerk Commission on Human Relations
325 John Knox Road Suite 240, Bldg. F
Tallahassee, Florida 32399-1570
CORRECTED APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2063
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr.
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35)
Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-
113, 117, 118, 121, 128-130, 134, and 136 are
unsupported by the credible, competent and substantial evidence,
4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45,
46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119,
120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact.
Specific Rulings on Proposed Findings of Fact
Submitted by Respondent, Tallahassee Coca-Cola Bottling Co.
1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13-15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47).
2. Proposed findings of fact 4-8, 13-16, 20-22. 26-33, 35,
38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 52 and 55 are irrelevant.
| Issue Date | Proceedings |
|---|---|
| Apr. 19, 1995 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| Oct. 07, 1993 | Notice of Correction sent out. (corrected appendix) |
| Sep. 23, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held June 8-10, and 16, 1993. |
| Aug. 23, 1993 | Motion Accepting Petitioner's Recommended Order, Finding of Fact and Conclusions of Law filed. |
| Aug. 23, 1993 | Petitioner's Recommended Order, Finding of Fact and Conclusions of Law filed. |
| Aug. 17, 1993 | Order Extending Time for Filing of Proposed Recommended Order sent out. |
| Aug. 16, 1993 | (Petitioner) Motion for Enlargement of Time to File Recommended Orderfiled. |
| Aug. 16, 1993 | Respondent's Proposed Findings of Fact and Post-Trial Brief filed. |
| Jul. 07, 1993 | Final Hearing Transcript (Volumes I - VII) filed. |
| Jun. 16, 1993 | (4) Subpoena Ad Testificandum w/Affidavit of Service filed. (From Marie Mattox) |
| Jun. 11, 1993 | Notice of Hearing sent out. (hearing set for 06/16/93;1:30PM;Tallahassee) |
| Jun. 09, 1993 | Amended Notice of Taking Deposition filed. |
| Jun. 08, 1993 | Final Hearing Held6/8-10, 16/93; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Jun. 08, 1993 | Subp ad Testificandum (6) filed. |
| Jun. 07, 1993 | Objections to Respondent's Exhibits and Witness List; Petitioner's Incorporation of Respondent's Prehearing Statement, in Part filed. |
| Jun. 07, 1993 | Subp ad Testificandum filed. |
| Jun. 04, 1993 | Unilateral Prehearing Stipulation filed. |
| May 28, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| May 28, 1993 | (Petitioner) Notice of Taking Telephonic Deposition filed. |
| May 28, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| May 27, 1993 | (Respondent) Re-Notice of Taking Deposition (3) filed. |
| May 20, 1993 | (Petitioner) Notice of Taking Deposition (4) filed. |
| May 14, 1993 | (Petitioner) Notice of Propounding Interrogatories to Respondent; Request to Produce filed. |
| Apr. 09, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for June 8-10, 1993; 9:00am; Talla) |
| Apr. 09, 1993 | Order of Prehearing Instructions sent out. |
| Apr. 07, 1993 | Notice of Appearance; Motion for Continuance filed. (From Marie A. Mattox) |
| Mar. 25, 1993 | (Respondent) Re-Notice of Taking Deposition (6) filed. |
| Feb. 11, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for April 14, 1993 at 10:00am, and continuing at 9:30am, April 15, 1993; Talla) |
| Feb. 11, 1993 | Re-Notice of Taking Deposition (7) filed. (From William R. Radford) |
| Feb. 09, 1993 | Letter to DKK from James Andrews, Jr. (re: request for extension of time) filed. |
| Jan. 26, 1993 | (Respondent) Response to Motion for Leave to Withdraw filed. |
| Jan. 22, 1993 | Order Granting Leave To Withdraw sent out. (Paul Amundsen is grantedleave to withdraw as counsel and his duties as counsel of record are terminated) |
| Jan. 19, 1993 | (Respondent) Re-Notice of Taking Deposition filed. |
| Jan. 19, 1993 | (Petitioenr) Motion for Leave to Withdraw As Counsel filed. |
| Jan. 19, 1993 | (Respondent) Re-Notice of Taking Deposition filed. |
| Dec. 04, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 2/18/93; 10:30am; & 2/19/93; 9:30am) |
| Nov. 24, 1992 | (Respondent) Motion for Continuance filed. |
| Nov. 24, 1992 | (Respondent) Motion for Continuance filed. |
| Nov. 17, 1992 | (Respondent) Notice of Taking Deposition; RE-Notice of Taking Deposition filed. |
| Sep. 17, 1992 | Letter to Accurate Stenotype Reporters from LL sent out. |
| Sep. 17, 1992 | Order Continuing Hearing, Rescheduling Hearing, and Denying Motion inLimine sent out. (hearing set for 12/15-16/92; 9:00am; Talla) |
| Sep. 14, 1992 | Respondent's Memorandum in Opposition to Petitioner's Motion in Limine w/Exhibits A-F filed. |
| Sep. 14, 1992 | (Respondent) Motion for Extension of Time filed. |
| Sep. 01, 1992 | Order Granting Extension of Time sent out. (until 9/14/92) |
| Aug. 27, 1992 | Letter to DKK from Paul H. Amundsen (re: Coca-Cola's Reply to Andres'Motion En Limine) filed. |
| Aug. 20, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Aug. 19, 1992 | (Respondent) Motion for Extension of Time filed. |
| Aug. 18, 1992 | (Respondent) Notice of Taking Deposition (3) filed. |
| Aug. 07, 1992 | (Petitioner) Motion En Limine filed. |
| Jul. 20, 1992 | Respondent's Response to Initial Request for Admissions filed. |
| Jul. 01, 1992 | (Petitioner) Response to Request for Production; Notice of Service ofAnswers to Interrogatories filed. |
| Jun. 24, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for September 29 and 30, 1992; 9:00am; Talla) |
| Jun. 24, 1992 | Joint Motion for A Hearing Continuance filed. |
| Jun. 22, 1992 | Respondent's Response to Petitioner's Initial Request for Production of Documents; Respondent's Objections to Interrogatories filed. |
| Jun. 18, 1992 | Andrews' Initial Request for Admissions to Tallahassee, Coca-Cola Bottling Company filed. |
| Jun. 09, 1992 | (Respondent) Answer to First Amended Petition filed. |
| Jun. 01, 1992 | (Respondent) Notice of Service of Interrogatories to Petitioner filed. |
| Jun. 01, 1992 | (Respondent) Notice of Service of Respondent's First Request for Production of Documents filed. |
| May 26, 1992 | First Amended Petition of James Andrews, Jr. filed. |
| May 19, 1992 | Notice of Service of Interrogs; Petitioner's Initial Request for Production of Documents filed. |
| May 12, 1992 | Order Granting Leave To Amend sent out. (petitioner may file an amended petition no later than 5-26-92) |
| May 11, 1992 | (Petitioner) Notice of Appearance and Motion for Leave to Amend Petition filed. |
| May 07, 1992 | Notice of Hearing sent out. (hearing set for Aug 3-4, 1992; 9:00am; Talla) |
| May 07, 1992 | Order of Prehearing Instructions sent out. |
| Apr. 24, 1992 | Ltr. to DKK from James Andrews, Jr. re: Reply to Initial Order filed. |
| Apr. 21, 1992 | (Respondent) Response to Amended Initial Order filed. |
| Apr. 20, 1992 | Order Granting Extension of Time sent out. (request granted and parties response to the initial order shall be filed no later than 4-24-92) |
| Apr. 17, 1992 | Ltr. to DKK from James Andrews re: Reply to Initial Order filed. |
| Apr. 16, 1992 | (Respondent) Answer to Petition for Relief w/Exhibits 1&2 filed. |
| Apr. 09, 1992 | Election of Method of Preservation of Record filed. |
| Apr. 07, 1992 | Amended Initial Order sent out. |
| Apr. 06, 1992 | Letter to SLS from Mary C. O'Rourke (re: representation of petitioner) filed. |
| Apr. 01, 1992 | Initial Order issued. |
| Mar. 30, 1992 | Transmittal of Petition; Complaint; Notice of Determination; Petitionfor Relief; Notice to Commissioners and Respondent's Notice of Transcription filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 29, 1995 | Agency Final Order | |
| Sep. 23, 1993 | Recommended Order | Petitioner fired based on employer's good faith belief he had committed mul- tiple acts of sex harassment and misconduct. No racial discrimination shown. |
