STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY L. THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3784

) CUMBIE CONCRETE CONSTRUCTION ) COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on December 21-22, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mary C. O'Rourke, Esquire

324 West College Avenue Tallahassee, Florida 32301

For Respondent: Harold F. X. Purnell, Esquire

Post Office Box 551 Tallahassee, Florida 32302-0551

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.

PRELIMINARY STATEMENT

On April 23, 1991, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is Black, alleged that he was terminated from his employment as the result of his race.

On March 17, 1992, the Florida Commission on Human Relations entered a Notice of Determination: Cause.

Petitioner filed a Petition for Relief with the Commission on May 18, 1992.

The Petition alleged that Respondent had committed an unlawful employment practice with respect to compensation, conditions and privileges of Petitioner's employment on the basis of Petitioner's race in violation of Sections 760.01- 760.10, Florida Statutes.

The Petition also contained Petitioner's request that he receive relief in the form of reinstatement to his former position, back pay with attendant

benefits, injunctive relief prohibiting further discrimination, and attorneys' fees and costs.

Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of nine witnesses, including himself. He also offered 31 exhibits in evidence. Respondent presented the testimony of five witnesses and three exhibits.

A transcript of the final hearing was filed with the Division of Administrative Hearings on January 15, 1993. In accordance with provisions of Rule 60Q-2.031, Florida Administrative Code, the parties, by request and agreement to a deadline for filing proposed recommended orders more than 10 days after the filing of the transcript, waived provisions of Rule 28-5.402, Florida Administrative Code. Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Cumbie Concrete Construction Company. B. T. Cumbie has been Respondent's president since the company's inception in 1978. Prior to economic difficulties which caused Respondent to cease most business activities in September of 1991, Respondent employed as many as 150 persons, had a fleet of approximately 129 vehicles and construction equipment valued in excess of two million dollars.

   
   

2. Respondent was significantly affected by the economic recession in 1990 and 1991. In the latter part of 1990, Respondent was experiencing a major slowdown in work and began cutting back work crews and slowly going out of business. At the beginning of September, 1991, Respondent effectively ceased all operations, dismissed all employees and sold all equipment. The business was then started again, doing just basic concrete work as opposed to previous large-scale projects. This renewal of Respondent's business activities began approximately in May of 1992, although some small finishing up of prior jobs had been done prior to that time. Personal principles of Respondent's president led to this direction of the company, as opposed to the filing of bankruptcy by the company.

   
   

3. Petitioner could have had no reasonable expectation of employment after September 6, 1991, when all other employees, inclusive of corporate officers, were dismissed.

   
   

4. Respondent has employed hundreds of employees since its inception. At any given time, 50 percent of the employees have been black. Employees have routinely been assigned to multiracial crews based upon skills of employees and needs of the particular work crew. Respondent has never had a charge of discrimination levied against it.

   
   

5. Petitioner, Henry L. Thomas is black. He was employed by Respondent as a concrete finisher at a rate of $7.00 per hour from May 4, 1989, until his discharge on January 9, 1991. Considered an apprentice finisher in terms of skill level, he never applied for the position of supervisor or foreman with Respondent. Petitioner has never felt any instance of discrimination during his

   20 months of employment, other than the incident which forms the basis of this

   proceeding. No other concrete finishers were hired by Respondent from the time of Petitioner's dismissal and the September, 1991 cessation of business.

   
   

6. On January 9, 1991, Alex Smith was the project manager for Respondent's project at a mushroom plant in Gadsden County, Florida. Smith learned from the representative for the overall project's general contractor, Johan Bult, that two of Respondent's employees were allegedly selling drugs at the job site and that the general contractor wanted those employees removed from the premises or the sheriff would be called. The two employees in question were Petitioner and a white individual known as Donald "Chip" Hines.

   
   

7. Hines was employed by Respondent on June 8, 1990, as a laborer at the rate of $5.00 per hour. Prior to January 9, 1991, Hines' work record reflects no documented incidences of tardiness and only three absences, all of which were excused. He was not the subject of complaints by any past or present foreman employed by Respondent.

   
   

8. By way of contrast with Hines' work record, Petitioner was absent 19 times in the space of 20 months employment with Respondent. Petitioner was on probation in the state of Georgia from his conviction as an habitual offender at the time he began his employment. Petitioner's assertion that all of his absences were related to his need to report to his probation officer in Georgia is not credited in view of the multiple absences reflected in work attendance records for some months and virtually no absences in other months. Petitioner also asserts that he never failed to come to work without first calling by telephone and checking in with Respondent's offices. However, the work records list two absences, October 21, 1989, and May 29, 1990, as having occurred without permission and without Petitioner having checked in with his employer. Two absentee reports note that Petitioner was also absent on two occasions due to car trouble, contrary to Petitioner's assertion that he was never absent for these reasons. Petitioner was frequently provided transportation to and from job sites in the course of his employment by foremen and others employed by Respondent. Only one absentee report reflects Petitioner's absence from work for matters connected with the judicial system.

   
   

9. With regard to Petitioner's judicial probationary status, Respondent provided a letter to Petitioner's probationary officer on January 13, 1990, certifying Petitioner's employment.

   
   

10. Smith checked with Respondent's office regarding Bult's complaint and was told to lay the two employees off. Smith spoke with Petitioner and told him about the complaint and the directive to lay the men off. Smith instructed the foreman at the site to call Hines, who had taken the day off, and inform him.

    
    

11. Smith then provided Petitioner with a ride back to Respondent's office where Petitioner's car was located. Enroute, Petitioner denied that he had sold any drugs at the Quincy Farms site. While Petitioner now contends that Hines was selling drugs and that he personally observed him selling drugs, he did not provide that information to Respondent's supervisory personnel at the time of the two men's dismissal from employment.

    
    

12. Respondent's president specifically made the decision to terminate the two men's employment since they could not be returned to that job site. In conjunction with that termination action, he also attempted placement of both men with other work crews. He did not force their employment on any foreman who was reticent to cooperate since to do so would, in his opinion, destroy the team function of a crew and create even bigger problems for Respondent.

13. While in Respondent's employment, Petitioner worked for a foreman named Lloyd Cruce who, Petitioner maintained at final hearing, never made any comments about his absenteeism, tardiness or his "mouth". Petitioner's testimony on this point is not credited in view of the direct and candid testimony of Cruce, who no longer works for Cumbie Concrete, to the effect that he had repeated problems with Petitioner's absenteeism and attitude, noting that for the period March 6 to May 1, 1990, Petitioner was absent eight separate times. As a consequence, Cruce submitted papers to Respondent's president requesting the firing of Petitioner for his absenteeism and attitude. Respondent's president elected at that time to place Petitioner with another crew.

    
    

14. After the employment termination of Hines and Petitioner, Smith assisted the efforts of Respondent's president to place the two men with Respondent work crews on other jobs by also checking with foremen regarding possible placement. Smith spoke with Tommy Simkins, Randy Langston and may have talked with Bill Chason. Randy Langston advised Smith that since he had a forming crew which involved skilled carpenters, he was not interested in taking Donald Hines because he was a laborer and lacked necessary skills for his crew. Langston did not want Petitioner on his crew because Petitioner's lack of necessary skills, his inability to get along with people and his use of inappropriate language would cause problems for his crew. As noted by Langston, Petitioner was quite vocal and it was a "hassle" to get Petitioner to do anything. Langston was familiar with both Donald Hines and Petitioner as his crew has previously supplemented their crew for a time at Quincy Farms.

    
    

15. Tommy Simpkins accepted Donald Hines on his crew. Two other laborers, David Martinez, an Hispanic, was transferred to the Quincy Farms crew and Lonzo Murray, a black or African-American, was temporarily transferred to that crew. Simpkins had more workers on his crew than he needed and did not need a concrete finisher on his crew. He also noted past problems with Petitioner being late to work and having difficulty with obtaining transportation to the job site. Even though Simpkins had made him a lead worker on occasion in the past, Petitioner had a hard time getting along with other people.

    
    

16. Following an argument between Petitioner and a Respondent project manager, Steve Griffin, a job site on May 31, 1990, Petitioner was sent home because of the noticeable smell of alcohol on his breath. Petitioner had been late reporting to work on that day, not showing up until approximately 10:00 a.m., and then was sent home at 12:30 p.m., following the argument with Griffin. Petitioner's assertion that he went home sick that day after working all morning is not credited in view of alcohol smell observed on his breath by Tommy Simpkins and the fact that he was paid for only two and one-half hours of work on May 31, 1990, contrary to his claim of being paid for one-half day.

    
    

17. Petitioner's assertion that Simpkins, following Petitioner's dismissal from employment, denied writing Petitioner up for having alcohol on his breath is not credited in view Simpkins' testimony that he did, in fact, write Petitioner up for that incident and that he had smelled the alcohol on his breath. Simpkins, in a confrontation with Petitioner after the employment termination action, did tell Petitioner he couldn't recall the incident. Simpkins explained that he did this because Petitioner was in a highly agitated state at the time, hollering at him in the garage area of Respondent's facility about the incident and that he, Simpkins, did not understand what Petitioner was talking about. The record of the incident, the absentee report, unquestionably bears Simpkins' signature which he has never denied affixing to the report. In

    view of the demeanor and candor of the two men while testifying, Simpkins' version of the incident is clearly more creditable and consistent with the evidence.

    
    

18. Respondent's president spoke with both Bill Chason and Steve Griffin, whose crews used finishers and laborers, relative to placing Donald Hines and Petitioner. He learned that both Chason and Griffin had had prior problems with Petitioner and did not want him on their crews.

    
    

19. The testimony of Chason, a Respondent foreman, establishes that Petitioner created trouble and started arguments between crew members when those crews needed to operate as a team. Petitioner had a specific disagreement with Chason concerning Petitioner's refusal to run a vibrator machine at a McDonald's job site. Chason talked with Petitioner on several occasions about his attitude. When asked by both Alex Smith and Respondent's president about putting Petitioner on his crew, Chason stated he didn't want Petitioner because his attitude caused too much trouble.

    
    

20. Chason's testimony was reiterated in similar form by others who had observed Petitioner at work. Smith observed Petitioner while working at Quincy Farms and questioned his demeanor, noting he would get angry and agitated quite easily. Langston similarly testified as did Simpkins who noted that Petitioner always had difficulty getting along with other crew members. Lloyd Cruce noted that Petitioner had an attitude problem at work.

    
    

21. Past and present foremen employed by Respondent noted that they never observed any discrimination being practiced nor race entering into employment or employee decisions. As previously noted, even Petitioner acknowledged that with the exception of the specific incident which is the subject of these proceedings, he had never experienced any discrimination while working for Respondent nor felt he was treated badly.

    
    

22. Petitioner presented the testimony of his friend and former roommate, John Randle, who worked as a laborer for Respondent from August of 1989 to November of 1990, for the proposition that Bill Chason had once stated that he wanted Petitioner to work for him on his crew. Randle asserted that he worked with Petitioner, by virtue of temporary assignment to the crew on which Petitioner worked, three or four times a month for approximately seven months. Chason, however, noted that Mr. Randle worked on his crew on a permanent basis the entire time he was employed by Respondent and was not temporarily assigned to a crew three or four times a month for seven months. Chason further denied Randle's averment that he, Chason, had stated at the Quincy Farms site that he wanted Petitioner on his crew. The testimony of Randle is not credited in view of his demeanor while testifying and the inconsistency of that testimony with testimony of Chason, Simpkins and other individuals.

    
    

23. Respondent did not have a sophisticated personnel office with persons assigned the job of creating and keeping records. Further, the nature of the work performed by Respondent's crews is such that foremen are often at a specific location of activity at the job site, away from their company vehicles where their paperwork would be kept. As a consequence, they often do not write up infractions such as tardiness. In Petitioner's situation, for example, he was absent without permission on October 21, 1989, a fact noted on his time sheet, but the required absentee report was never filled out by the foreman. Petitioner conceded to being late to work on occasion.

24. In the Tallahassee area there is a significant problem with obtaining workers. Replacing a worker is difficult, particularly in light of the delay occasioned by finding a qualified replacement worker. Construction projects all have built-in dollar penalties for failure to complete a job on time. A construction company is better served by keeping someone if there is any way of doing it, rather than simply dismissing an employee. As a result, the requirement of Respondent's employee manual specifying dismissal after three absences was not enforced during Petitioner's tenure.

    
    

25. Respondent's dismissal of Petitioner has not evolved over time. As established by the proof presented at hearing, Petitioner and Donald Hines were let go on January 9, 1991, because the company which employed Respondent to do work at the Quincy Farms mushroom plant effectively barred Petitioner and Donald Hines from that job site with the allegation of illicit activity by the two men and the threat to call the sheriff if they reappeared there. Further, the complaint against the two men came at a time when Respondent, already experiencing a critical cessation of project activity, could not afford to jeopardize retention of a vitally important project. The level of concern evidenced by Johan Bult's company is amply demonstrated by the fact that after the alleged drug selling incident, all construction workers were barred from the Quincy Farms employee lunch counter area.

    
    

26. Respondent, with no specific proof that any drug transactions actually occurred at Quincy Farms, sought to place both persons on other crews.

    
    

27. Respondent, throughout the process that ultimately resulted in the instant hearing, set forth the basic work record of Petitioner, including his absences, the May 31, 1990 incident and, contrary to Petitioner's assertion, the problems with his attitude.

    
    

28. In a May 10, 1991, letter to the Florida Commission on Human Relations, Respondent clearly noted that Quincy Farms stated that Petitioner and Hines had been observed selling drugs on the job site, would not be able to work on their project and that both men were told to leave the job site and go home. Subsequently, the employment of each individual was reviewed and Petitioner's file revealed he had missed work on numerous occasions and had been reprimanded for coming to work with alcohol on his breath, while Hines' file revealed he had missed only three days in seven months of employment. The letter further notes that it was determined that it would be best that Petitioner not be placed with another crew "due to prior problems."

    
    

29. Petitioner was not similarly situated to Donald Hines relative to position and work history. Hines commenced work for Respondent on or about June 8, 1990, and, prior to January 9, 1991, he had no incidences of tardiness, of alcohol being noted on his breath at work, of failure to report without permission, and no evident adverse work habits or problems on the job.

1. Petitioner seeks damages of $13,000.75, an amount equal to his wages for calendar year 1990. Petitioner's employment with Respondent ended on January 9, 1991, and he concedes that everyone in Respondent's employ was dismissed in the beginning of September 1991. He drew unemployment compensation charged to Respondent from January 1991, to August of 1991, in quarterly amounts of $1,016.00, $1,524.00, and $762.00.

   
   

2. Thereafter, Petitioner worked throughout all of August, 1991, to February, 1992, at $7.50 an hour for another employer. Then, from February of 1992, until a month prior to the final hearing, he drew unemployment

   compensation charged to that employer. He also conceded that shortly after February of 1992, he worked full time for a construction business for approximately six months at the rate of $8.00 per hour which was paid to him in cash, while he was drawing unemployment compensation.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.

   
   

4. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

   
   

5. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the treatment accorded Petitioner. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason is pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

   
   

6. To establish a prima facie case, Petitioner must show he is a member of a protected class; that he was the subject of disparate treatment in the employment action suffered by him; and that he was replaced in the position from which he was removed by a member from a non-protected class. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1983), cert. denied, 464 U.S. 1018 (1984), Rehr'g denied, 465 U.S. 0154 (1984).

   
   

7. Petitioner is a member of a protected class. Following his termination, Respondent did not hire any additional concrete finishers prior to the September 1991 cessation of business activity. Murray and Martinez, the replacements for Hines and Petitioner on the Quincy Farms crew, were, respectively, Hispanic and African-American.

   
   

8. No evidence of racial discrimination regarding the employment termination of either Petitioner or Hines was presented at the final hearing. With regard to the failure to rehire Petitioner as opposed to the rehiring of Hines, the placement of Hines on a crew at another job site was possible partly because he was a worker of a lower skill classification and partly because of nonpretextual or nonracial opposition to Petitioner.

   
   

9. Petitioner has not presented direct evidence of racial discrimination on the part of Respondent in the rehiring of Hines, rather than Petitioner. Petitioner has not shown a prima facie case of employment discrimination which has not been rebutted by Respondent. Even assuming that Petitioner has met this burden, Petitioner has failed to show that Respondent's asserted reasons for its actions were pretextual.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 23rd day of March, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 23rd day of March, 1993.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings 1.-4. Accepted.

5. Rejected, not supported by weight of the evidence. 6.-8. Rejected, subordinate to HO findings.

9.-10. Adopted, though not verbatim.

11.-12. Rejected, not supported by weight of the evidence. 13.-18. Accepted.

19.-24. Rejected, subordinate to HO findings. 25.-37. Rejected, relevancy.

38.-39. Rejected, not supported weight of the evidence.

40. Accepted.

41.-47. Rejected, relevancy.

48.-59. Accepted.

1. Rejected, argumentative.

2. Accepted.

62.-66. Rejected, subordinate to HO findings.

67.-68. Rejected, not supported by weight of the evidence. 69.-72. Rejected, relevancy.

73. Accepted.

74.-78. Rejected, subordinate to HO findings. 79.-81. Accepted.

82.-88. Rejected, relevancy.

89.-91. Accepted.

92. Rejected, not supported by weight of the evidence. 93.-94. Accepted.

1. Rejected, not supported by weight of the evidence.

2. Accepted.

3. Rejected, relevancy.

98.-102. Accepted, but not verbatim.

1. Rejected, credibility.

2. Rejected, subordinate to HO findings. 105.- 107. Rejected, credibility.

108.-109. Rejected, relevance.

Respondent's Proposed Findings

1.-5. Accepted.

6. Rejected, relevancy.

7.-9. Accepted.

10.-11. Rejected, unnecessary.

12. Subordinate to Hearing Officer's findings on this point.

13.-35. Accepted, but not verbatim.

COPIES FURNISHED:

Mary C. O'Rourke, Esquire

1. West College Avenue Tallahassee, Florida 32301

   
   

   Harold F. X. Purnell, Esquire Post Office Box 551 Tallahassee, Florida 32302-0551

   
   

   Margaret Jones Clerk

   Florida Commission On Human Relations

2. John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

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: 92-003784

Orders for Case No: 92-003784