vs. ) CASE NO. 92-4504
Respondent. )
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 October 15-16, 1992, in Tallahassee, Florida.
For Respondent: Louisa H. Warren, Esquire
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.
On October 28, 1991, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that he was demoted from the position of Lottery
Investigator to the position of Security Officer as the result of Petitioner's race.
On April 20, 1992, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On June 22, 1992, the Commission entered a Notice of Redetermination: No Cause.
Petitioner filed a Petition for Relief with the Commission on July 22, 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The Petition also contained Petitioner's request that the demotion be rescinded; that he receive back pay and payment for other unspecified monetary damages and that all documents relating to the incident and reflecting negatively on Petitioner be removed from Petitioner's employment personnel file.
Respondent's answer to the Petition was issued on August 14, 1992, generally denying allegations of Petitioner of discriminatory treatment. Respondent did admit to replacing Petitioner with a white male, following Petitioner's demotion.
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 18 witnesses, including himself. He also offered 11 exhibits in evidence. Respondent presented the testimony of five witnesses and 38 exhibits. Neither party requested a transcript of the final hearing. Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.
Petitioner Auburn Ford, Jr., was employed by Respondent as a Lottery Investigator from November 1987 until his demotion to the position of Security Officer on August 23, 1991. Respondent admits that Petitioner was the only black Lottery Investigator and that he was replaced by a white male.
Petitioner's demotion, as a disciplinary action by Respondent, was detailed in a letter dated August 23, 1991, to Petitioner from Respondent's representative. In that letter, it was asserted that Petitioner's demotion was the result of his entry into a high security area without legitimate business reasons on July 14, 1991; his entry into a high security area through use of an access card of a subordinate Security Officer, as opposed to use of his own card; his untruthful response concerning use of a telephone in the high security area; and his inaccurate reporting of hours worked in the month of June, 1991.
As a Lottery Investigator, Petitioner's duties included implementation of lottery procedures and policies; maintaining controlled access where appropriate; as well as providing training, guidance and supervision of lottery Security Officers. Lottery Investigators are sworn or certified law enforcement officers while Security Officers are unsworn.
At the time of his demotion, Petitioner worked the 11 p.m. to 7 a.m. shift along with Linda Koss, another Lottery Investigator. Along with Koss, he jointly supervised the Lottery Security Officers assigned to that shift.
The building housing the lottery department is a secure facility in that all persons entering the building must have access authority evidenced by an access badge. In the absence of an access badge, a temporary or visitor's badge allows access to the building in the company of an escort.
Within the lottery building, there are areas which are subject to additional security. Access to these areas is limited to the individuals
working in those areas and others who have a work-related need to be there. Each employee's access area is determined by the employee's supervisor. An employee's access badge is then programmed for that particular employee's
approved access. Lottery Investigators and Security Officers have access to all areas within the building.
Each employee is required to sign an access card receipt form upon receipt of the individual employee's access badge. The receipt states that access privileges accompanying the badge are to be used only by that particular employee and that improper or unauthorized use of the badge could subject the employee to termination or other disciplinary action.
Security personnel, including Petitioner, signed such a receipt form and knew that exchanging access cards was a violation of security policies.
Policies and procedures of Respondent governing access badges establish a comprehensive scheme designed to ensure lottery security through controlled access to the lottery building and areas within the building.
Allen Dees was head of Respondent's Bureau of Security and supervisor of Lottery Investigators and Security Officers, during Petitioner's tenure as a Lottery Investigator. Dees orally instructed employees subject to his supervision to refrain from interfering with items on desks throughout the building. The instruction was repeated emphatically after an incident where the theft of personal employee items resulted in the resignation from employment by one Division of Security employee and termination of another's employment.
Since Division of Security employees are alone in the lottery building after normal working hours, any unexplained interference with or use of employees' desks, equipment or property often results in the visitation of suspicion upon security employees.
In the course of performing their duties, Lottery Investigators and Security Officers periodically conduct watch tours. These tours consist of walking through specified areas of the building to check for security or safety violations.
A watch tour of the executive offices is appropriately called The Executive Watch Tour. This tour includes the entire second floor of the lottery building where the executive offices are located, as well as an area known as the On-Line Game area.
Watch tours have a minimum and maximum length of time for completion. The length of allotted time for these tours is established to permit an unhurried but consistent inspection of the areas on the tour. Lottery Investigators and Security Officers conducting a tour are to proceed steadily during that activity and not dawdle.
Within the On-Line Game area is located the computer system which runs and maintains the integrity of the on-line gaming system of the Lottery, as well as other sensitive and confidential information. Access to this area is controlled by an access card or badge reader which allows entry only to those persons involved in the gaming operation and to security personnel. Security personnel are instructed to use their access badges to enter the area and remain only long enough to permit a determination that there are no safety or security problems in the area. Entering and remaining in this high security area for reasons other than determining the existence of safety or security problems is unauthorized.
On the night of July 14, 1991, Petitioner approached Ed Maxwell, a Security Officer subject to Petitioner's supervision, and demanded Maxwell's access badge. Maxwell, who was monitoring the security computer console at the time and saw that Petitioner's own badge was in Petitioner's shirt pocket, knew that allowing another person to use his access badge was a violation of security policy, but complied since Petitioner was his supervisor. Maxwell later observed from the computer console that his access badge was being used to open the access-controlled door to the On-Line Game Area. When Petitioner later returned his badge, Maxwell asked why Petitioner had not used his own badge. Petitioner simply responded that he was the supervisor and expected Maxwell to do what he requested.
Maxwell reported the incident to Linda Koss, the other Lottery Investigator on duty in the building at the time and met later with security chief Dees on July 23, 1991. After the meeting, Maxwell filed a written report dated July 24, 1991, with Dees regarding the incident.
On July 31, 1991, Frank Carter, Director of Respondent's Division of Security, wrote a memorandum to Petitioner. In the memorandum, Carter detailed several allegations of misconduct by Petitioner, including Petitioner's use of Security Officer Maxwell's card to the enter the On-Line Games Area and Petitioner's entry into the closed office of Respondent's Deputy Secretary of Marketing. Carter's memorandum requested a response from Petitioner. Petitioner's written response stated that the allegations were untrue.
Petitioner's presence in the On-Line Game Area on the date in question was confirmed by a copy of a real-time print out of telephone calls made from that location. A telephone call lasting approximately 16 minutes had been made from the On-Line Game Area to Petitioner's home on July 14, 1992.
On August 3, 1991, Maxwell again wrote a memorandum to Dees, complaining about what he perceived as harassment from Petitioner for reporting the previous badge borrowing incident. In the memorandum, Maxwell detailed altercations where Petitioner had called him a "dishonest honkey" and a "liar", as well as attempting to instigate a physical confrontation with Maxwell. Further, Maxwell related that Ford had called his home at midnight when Maxwell was out sick, demanding that Maxwell bring in a doctor's excuse or suffered a loss of pay for the sick time.
On August 5, 1991, Koss wrote a memorandum to Dees in which she supported Maxwell's version of the events occurring on the midnight shift and voiced her concern that the effectiveness of the shift was deteriorating.
On August 14, 1991, both Petitioner and Koss wrote memorandums to Dees. Each blamed the other for an escalating atmosphere of hostility between two factions on the midnight shift: One faction comprised of Koss and Maxwell, and the other faction comprised of Ford and two other Security Officers.
On August 15, 1991, Carter, along with Respondent's Deputy Secretary of Operations and Director of Personnel Administration, met with the midnight shift personnel. During the course of the meeting, Petitioner admitted to use of Maxwell's card in entering the On-Line Game area as well as entry of the Deputy Secretary of Marketing's office. When asked directly if he had ever made a personal call from the On Line Game area, Petitioner stated that he had not. Later Petitioner conceded he had made the July 14, 1992 telephone call from the On-Line Game Area to his home.
Petitioner began working the midnight shift in April of 1991. At that time, Koss was already working the midnight shift and was warned by another Lottery Investigator that Petitioner was not always accurate in his report of his hours worked. Koss began keeping track of Petitioner's attendance by noting his absences on her personal calendar. She had no knowledge of whether absences were approved or unauthorized.
Koss observed Petitioner's June 1991 time sheet on the desk of an assistant and noticed that he reported having worked on June 12 and June 13, 1991. She had noted on her calendar that Petitioner had been absent on those days with the exception of four hours of excused absence to attend firearms training. She reported the discrepancy to Dees. Dees in turn consulted system computer records to determine if Petitioner had signed into the system on those days and determined that he had not. Consequently, it was determined that Petitioner had falsified his time sheet by recording his presence on both days.
The exchange of access badges by Security Officers was a frequent occurrence even though it was known to be a security violation. The practice was frequent with the midnight shift and went unreported to the chief of security, who would have instituted disciplinary proceedings had he known of the practice. Testimony was presented by Randy Ringpfiel, a Security Officer, to the effect that the practice was also widespread among Lottery Investigators and known to management, but Ringpfiel's testimony is rejected in view of his demeanor and lack of credibility while testifying.
Previously, in February of 1991, Petitioner accompanied a shipment of lottery tickets to an incinerator facility in Panama City, Florida, where lottery materials were to be destroyed in accordance with a contract between Respondent and the incinerator facility. An argument occurred with personnel at the incinerator. Petitioner perceived that the argument and disagreement with the incinerator workers resulted from the fact that they were white and he was black.
Petitioner reported to Dees that the incinerator personnel were discriminating against him. A subsequent meeting was held between Respondent's management officials and management personnel from the incinerator facility. Respondent's management informed the incinerator management that racial discrimination toward its employees would not be tolerated.
The attitude of incinerator personnel was not a result of racism. Instead, employees at the facility simply disliked dealing with shipments from Respondent since those shipments required special consideration in the process of destruction by burning. For instance, Respondent's security personnel were required to observe and oversee the actual destruction of all lottery materials. Often, the material from scratch off tickets complicated matters because the level of pollutants in these materials would exceed air quality and heat restrictions under which the facility was constrained to operate.
Assured by incinerator management personnel that the altercations with Petitioner were not racial in nature, Respondent's management later transferred Petitioner, at his request, to the midnight shift which did not require performance of any duties associated with the incinerator facility.
Carter, along with Respondent's Deputy Secretary of Operations and Respondent's General Counsel, met following the August 15, 1991 meeting with personnel of the midnight shift. The purpose of the meeting was to consider the
appropriate disciplinary action to be imposed on Petitioner in view of the infractions committed by him. Since, in addition to violation of lottery security policies, the infractions involved dishonesty both in answering questions and in completing time sheets accurately, the options of termination and demotion were considered.
Demotion to the position of Security Officer was determined to be the appropriate penalty after a review of Petitioner's past work performance and prior disciplinary actions. The consensus of management was that a great deal had been invested in the training of Petitioner and he had proven in the past that he could be a satisfactory employee, although not as a supervisor. It was felt that supervisors must be dependable and honest and permit upper level management to rely on their representations. This is particularly important with regard to security personnel assigned to supervisory positions on the night shift where there is no direct supervision beyond the Lottery Investigators on duty.
In order to permit Petitioner to be considered for promotion back to the position of Lottery Investigator if his performance improved, the demotion of Petitioner from a sworn or certified law enforcement officer position to an unsworn position was not reported to the Florida Department of Law Enforcement. An action that very likely prevented an investigation and possible removal of Petitioner's law enforcement officer certification by that agency.
Prior to his demotion, Petitioner received three performance evaluations. The first of these was an evaluation covering the period of November 13, 1987 to November 13, 1988, where Petitioner received an overall rating of "achieves standards". The evaluation included individual ratings in the categories of reliability, punctuality, and technical application which were "exceeds standards". Petitioner received a "below standards" rating in the category of communication skills.
The second evaluation of Petitioner's performance covered the period November 13, 1988 to November 13, 1989. He again received an overall rating of "achieves standards." The evaluation showed that he exceeded standards in the area of technical application, and was deficient or below standards in the category of reliability and punctuality.
Petitioner's third evaluation covered the period November 13, 1989 to November 13, 1990. Again, he achieved overall standards and exceeded standards in the area of technical application. He was deficient or below standards in the category of reliability and punctuality, as well as a category termed "other" where his attitude was noted to be poor regarding his work. His comments that he had no incentive were also documented in the evaluation.
Petitioner was placed on a performance improvement plan from January 30, 1991, through April 30, 1991, which he satisfactorily completed.
Respondent's discipline policy provides that discharge is an appropriate penalty for the first offense of a security policy violation. Penalties for the first offense of falsification of documents range from a written warning to discharge. There is no listed penalty for failing to truthfully answer questions posed by a superior.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.
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.
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).
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 demotion which he received; and that he was replaced in the position from which he was demoted 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).
Petitioner is a member of a protected class and was replaced by a member of a non-protected class. Petitioner has not, however, presented direct evidence of racial discrimination on the part of Respondent in connection with his performance evaluations, the incident at the Bay County Incinerator, or his demotion.
In this case, 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 demoting Petitioner were pretextual.
RECOMMENDED that a Final Order be entered dismissing the Petition for Relief.
DONE AND ENTERED this 10th day of November, 1992, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1992.
The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.
3.-4. Rejected, subordinate to Hearing Officer's findings on these matters.
1.-22. Accepted and addressed in major part, although not verbatim.
Auburn Ford, Jr.
Louisa H. Warren, Esquire Department of the Lottery Capitol Complex
Dana Baird, Esq.
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 consult with 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.
