STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL J. MARSHALL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5927

) TARMAC FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 1, 1993, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Samuel J. Marshall, pro se

S. R. Box 1075

Georgetown, Florida 32139

For Respondent: Grant D. Petersen, Esquire

Donna M. Griffin, Esquire

1408 North Westshore Boulevard, Suite 1000

Tampa, Florida 33607 STATEMENT OF THE ISSUES

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This cause arose on September 4, 1990, when petitioner, Samuel J. Marshall, filed a complaint of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, Tarmac Florida, Inc., had violated Section 760.10, Florida Statutes (1989), by unlawfully terminating his employment because of age and religion, or in retaliation for opposing alleged unlawful practices. After the Commission conducted a preliminary investigation, its executive director issued a Determination: No Cause on September 29, 1991. Other informal procedures proved to be unsuccessful and petitioner then filed his petition for relief on August 24, 1992. The matter was then referred by the Commission to the Division of Administrative Hearings on October 2, 1992, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 9, 1992, a final hearing was scheduled on February 4, 1993, in Green Cove Springs, Florida. At respondent's request, the matter was subsequently rescheduled to March 1, 1993, at the same location. On February 26, 1993, the case was transferred from Hearing Officer Robert T. Benton, II to the undersigned.

At final hearing, petitioner testified on his own behalf and offered petitioner's exhibits 4, 5, 7, 9, 10, 17 and 21. All exhibits were received in evidence except exhibit 17. Respondent presented the testimony of Byron White, Jack E. Stegall, and Minor O. Turrentine, all employees of the company. Also, it offered respondent's exhibits 1, 2 and 4-11. All exhibits were received in evidence.

The transcript of hearing was filed on March 31, 1993. Proposed findings of fact and conclusions of law were filed by respondent on April 19, 1993. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order. In addition, petitioner filed a letter and attachment on March 5, 1993, which has been considered by the undersigned.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Petitioner, Samuel J. Marshall, was born on November 19, 1936. In March 1986 he began employment as a truck driver hauling sand for Taylor Concrete and Supply, Inc. (Taylor) at its Palatka, Florida plant. When he began his employment with Taylor, Marshall advised his supervisor that because of his religious beliefs, he could not work on Saturdays. The name of the religion is not of record. Marshall says that after giving such notification to his employer, he was never required to work on Saturdays during his tenure with Taylor. This was not contradicted.

   
   

2. In 1989, Taylor sold the plant to respondent, Tarmac Florida, Inc. (Tarmac). As an employer with more than fifteen full-time employees, Tarmac is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Shortly after the sale, petitioner was advised that his position as a sand truck driver was being eliminated but he could transfer to a position as a ready-mix driver in the ready-mix division at the same plant. Petitioner accepted this offer effective November 28, 1989. Because the new position required the driver to work every other Saturday, petitioner advised the new plant manager, Byron White, that he could not work on Saturdays because of his religious beliefs. After Marshall produced evidence to verify his claim, White excused Marshall from working on Saturdays. Tarmac employee timecards confirm that Marshall was never required to work on a Saturday.

   
   

3. Petitioner was required to undergo a brief period of training by riding for several weeks with a senior driver, James Bolt. During petitioner's training period, Bolt was engaged in the illicit practice of selling any concrete left in his truck at the end of the day to third parties and then pocketing the money. This was obviously contrary to company policy. Petitioner was aware of this activity but said nothing. On occasion, Bolt would give petitioner some of the illicit proceeds, which he accepted.

   
   

4. In the first week of February 1990, or after he had completed his training with Bolt, petitioner went to White and told him that there was "illicit" activity being conducted at the plant, but he refused to disclose the nature of the activity or the name of the individual engaged in that enterprise. He also failed to tell White that Bolt had given him money. White communicated this conversation to the regional manager, Jack Stegall, but because they had no specific information on which to proceed, they were unable to investigate the allegations.

5. Tarmac has a number of plants within each division. It is not uncommon for drivers to be transferred from one location to another, based on the varying demands of the different plants. In June 1990 Stegall decided to transfer two drivers from the Palatka plant to the Green Cove Springs plant due to increased business at the latter facility. Petitioner and another driver, Dennis Folmer, then approximately thirty years of age, were selected for transfer since they had the least seniority in the Palatka ready-mix division. After learning of Stegall's decision, petitioner contacted Stegall and advised him that he believed the company policy required that transfer decisions be made based on seniority with the company, rather than seniority in a particular position. Stegall then checked with the human resources department and learned petitioner was correct. Petitioner's name was thereafter removed from the transfer list and James Bolt, who had less seniority than petitioner, was placed on the list.

   
   

6. During his meeting with Stegall, petitioner informed him about the illegal concrete sales that had occurred during his training period. After petitioner was told to inform White about this matter, he took White to the locations where he was with Bolt when the concrete was illegally sold. He also turned over to White the $30 he had received from Bolt.

   
   

7. Based on Marshall's revelation, on June 25, 1990, Bolt was terminated as an employee for the unauthorized sale of concrete. Because he had come forward and disclosed the illegal activity, petitioner was only given a one-week suspension without pay. Petitioner did not question nor challenge the suspension and admitted to White that he was involved in the sales. Also, on July 11, 1990, he was given a warning notice prepared by White and which read in part as follows:

   
   

   Sam confessed to selling unauthorized concrete on three separate occasions. Sam also reported others involved. For this reason only Sam was given one week off. If for any reason this happens again or attempt (sic) to, Sam will be terminated.

   
   

   Although petitioner was handed a copy of the notice, he refused to sign it, threw it back at White and walked away.

   
   

8. At the same time petitioner notified Stegall of the illegal concrete sales, he also asked Stegall about the possibility of transferring to Tarmac's Deland facility, which was closer to his home. Stegall indicated he would try to assist petitioner with a transfer, if possible. The next day, petitioner drive to the Deland facility and spoke with the Deland plant manager who indicated there was a ready-mix driving position available. The plant manager also agreed to contact White on petitioner's behalf. Even so, because the Palatka facility was short two drivers due to the transfer of Bolt and Folmer to Green Cove Springs, White could not afford to allow petitioner to transfer to Deland. He did promise petitioner that he would arrange for a transfer as soon as an opportunity arose which would not adversely impact the Palatka facility.

   
   

9. After petitioner's suspension for his participation in the illegal sale of concrete, Tarmac received complaints from other Tarmac employees regarding petitioner. Believing this conduct to be detrimental to the integrity of the company and a disruption of the harmony of the work unit, Minor Turrentine, then the Tarmac area production manager, advised petitioner that if he continued to talk about the illegal sale of concrete with other drivers and customers, he

   would be terminated for breaching company policy, that is, disclosing confidential information that was contrary to the company's best interests. He was also given a written warning on July 16, 1990, which read as follows:

   
   

   You were recently suspended for your admitted involvement in certain activities that are against company policy.

   
   

   It has been reported that you have openly discussed these matters with employees at various locations.

   
   

   Be advised that any further discussion concerning your suspension and the circum- stances surrounding it will be considered breach of confidentiality, which is a violation of company policy.

   
   

   Any further violation of company policy will subject you to severe disciplinary action, up to and including discharge.

   
   

10. After White received further complaints regarding petitioner, Tarmac terminated petitioner's employment effective August 21, 1990, for breaching company policy. The separation notice, which was dated the same date, gave the following reason for his termination:

    
    

    Employee was formally warned on July 16 to discuss no further his recent suspension. Discharged for further discussion on or about 8/20/90.

    
    

11. There is no evidence as to whether petitioner was replaced by another driver, and if so, the age of that driver. When terminating petitioner, Tarmac did not do so because of petitioner's age or religious beliefs. Indeed, Marshall conceded at hearing that he had no direct proof of discrimination but merely believed he was improperly terminated for those reasons. As evidence of age discrimination, petitioner speculated that Tarmac may have been attempting to lower its insurance rates by removing an older person from its payroll, a belief based solely on a conversation he had with an insurance agent a few weeks prior to hearing. However, at least three other ready mix drivers at the Palatka plant are older than Marshall. He also speculated that because he was not required to work on Saturdays, this caused ill-will among his co-workers, and Tarmac terminated him for his religious beliefs. Again, there was no proof, either circumstantial or direct, to support this assertion.

    
    

12. Regarding the claim that Tarmac's decision to transfer petitioner to Green Cove Springs in June 1990 was in retaliation for him telling White that working Saturdays was against his religion, the evidence shows that petitioner was removed from the transfer list once his seniority was brought to the company's attention. Petitioner also suggests that he was denied a transfer to the Deland facility in June 1990 as retaliation for his religious beliefs. However, the evidence shows that it was not feasible for Tarmac to transfer him at that time due to a shortage of drivers but Tarmac promised that an effort would be made to comply with his request when it was feasible.

    
    

13. Petitioner did not state whether he desires reinstatement to his former position. In his petition for relief, petitioner did request "70 percent

    of (his) average yearly base pay since August 20 on". However, petitioner's salary at the time of discharge is not of record. Further, there was no evidence presented to establish his salary nor the monetary losses, if any, petitioner has suffered by virtue of his termination. He is currently employed with another company.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

15. Subsection 760.10(1)(a), Florida Statutes, proscribes the following conduct:

    
    

    1. It is unlawful employment practice for an employer:

       (a) To discharge . . . any individual . . .

       because of such individual's . . . religion (or) age.

       
       

       In addition, Subsection 760.10(7), Florida Statutes, provides in part as follows:

       
       

       (7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice under this section . . .

       
       

       The petition for relief alleges that Tarmac violated the above statutes by unlawfully terminating petitioner's employment by reason of his age, religion and in retaliation for opposing unlawful employment practices.

       
       

16. Unlike its federal counterpart, the Human Rights Act of 1977 has been construed by the Commission as prohibiting discrim-ination in employment on the basis of any age, birth to death. See, e. g., Sims v. Niagara Lockport Industries, Inc., 8 F.A.L.R. 3588, 3591 (FCHR, May 20, 1986). Therefore, in order for a prima facie case to be established under this test, it is necessary for Marshall to show that (a) he was qualified for the position held; (b) he was replaced by another person of a different age; and (c) there is evidence, circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Anderson v. Lykes Pasco Packing Company, 503 So.2d 1269, 1270 (Fla. 2nd DCA 1986); Rodgers v. Penney Retirement Community, 15 F.A.L.R. 493, 494 (FCHR, April 14, 1992). Once a prima facie case is made, the burden shifts to the employer to demonstrate legitimate, nondiscriminating reasons for the discharge. If this is done, the presumption dissipates and in order to prevail, petitioner must either prove that a discriminating reason more likely motivated the employer or that the employer's proffered explanation is pretextual. Anderson at 1271; National Industries, Inc. v. Commission on Human Relations, 521 So.2d 1123, 1126 (Fla. 5th DCA 1988). These requirements track in part the often-cited criteria used in federal discrimination cases, as established by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

    
    

17. Petitioner failed to establish a prima facie case consistent with the requirements of Anderson. While he established that he was fifty-four years of age and was qualified for the position of ready-mix driver, there is no evidence that he was replaced, and if so, by someone of a different age. Moreoever,

    there is no evidence, either circumstantial or direct, from which one could reasonably infer that the employer was motivated by discriminatory animus, to wit, that he was terminated because of his age. Even if such a burden had been met, the employer has articulated a legitimate, nondiscriminatory reason for the challenged employment decision. More specifically, the established facts show clearly that the employee was terminated for failure to follow company policy.

    Therefore, as to this allegation, the petition must fail.

    
    

18. Petitioner has also contended that he was discharged because of his religion. To make a prima facie case of discrimination based on religion, Marshall must show (a) he had a bona fide religious belief; (b) he informed his employer of his religious views and that they were in conflict with his responsibilities as an employee; and (c) he was discharged because of his observance of that belief. Andrews v. Albertson's, Inc., 12 F.A.L.R. 2646, 2655 (FCHR, July 10, 1989). Once this burden is met, respondent must then show it made a good faith effort to accommodate petitioner's religious beliefs. Id. at 2655; Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978). Although petitioner demonstrated that he had a bona fide religious belief, that he had informed his employer of his religious views, and that such views were in conflict with his job responsibilities, he failed to offer any proof, either circumstantial or direct, that he was discharged because of his religious beliefs. Moreover, the evidence shows that Tarmac reasonably accommodated petitioner after learning of his religious convictions, and he was never scheduled nor required to report to work on any Saturday while employed with the company. Therefore, this allegation must also fail.

    
    

19. In his petition for relief, petitioner contends he was "retaliated against when I opposed respondent's practice". Although this contention was never explained or made clear, and the "practice" which petitioner opposed was never identified, the undersigned assumes that petitioner believes that respondent's decisions to transfer him to Green Cove Springs and deny him a transfer to Deland were in retaliation for his religious beliefs. To establish a prima facie claim of retaliation, petitioner must show (a) he was engaged in a protected activity; (b) he was subjected to an adverse employment decision; and

    (c) there is a causal connection between the protected activity and the adverse employment decision. Morgan v. City of Jasper, 959 F.2d 1542 (11th Cir. 1992); Barbosa v. The Southland Corporation, 12 F.A.L.R. 2616, 2621 (FCHR, March 26, 1990). Here, petitioner has arguably satisfied the first two elements by showing that he declined to work on Saturdays because of his religious beliefs, a protected activity, and was thereafter subject to an adverse employment decision. However, there is no evidence to establish a causal connection between the two. Even if such a showing was made, the company has articulated legitimate and nondiscriminatory reasons for each of its employment decisions, and petitioner did not show that these reasons were pretextual. The petition for relief should accordingly be denied.

    
    

20. Finally, two other matters require a brief discussion. First, by letter filed with the undersigned on March 5, 1993, but not served on respondent, petitioner submitted a copy of what purports to be a Notice of Decision of Appeals Referee rendered on October 16, 1990, by the Unemployment Compensation Appeals Bureau. The decision concerns his claim for unemployment benefits against Tarmac. The document was previously offered into evidence by petitioner at hearing but was ruled inadmissible on the ground of relevancy. On the copy of the notice of decision submitted by petitioner on March 5, 1993, the last sentence of the conclusions of law reads as follows:

While not material to the outcome of the hearing, the referee notes that based on the demeanor of the parties at hearing, the conflict is resolved.

After the undersigned furnished respondent with a copy of petitioner's filing, respondent filed a complete copy of the decision. It reflects that the last sentence of the conclusions of law reads as follows:

While not material to the outcome of the hearing, the referee notes that based on the demeanor of

the parties at the hearing the conflict is resolved in favor of the employer. (Emphasis added)

It is apparent that, prior to submitting his copy to the undersigned, petitioner altered the order to remove an adverse conclusion. The submission of a false document has been taken into account in judging the credibility of petitioner's evidence. Second, at hearing petitioner objected to the fact that the complaints referred to in findings of fact 9 and 10 were hearsay in nature and were not admissible. However, the evidence was not offered to establish the truth of the statements but only to establish White's state of mind and the information he relied upon in making his decisions. Subsection 90.803(3), Florida Statutes. Therefore, the statements were admissible. Moreover, the test is not whether, in discharging petitioner, respondent relied upon complaints which were true, but rather whether the reason for its employment decision was nondiscriminatory. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). Here, the evidence shows that the decision to terminate was based on nondiscriminatory reasons.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the petition for relief. DONE AND ORDERED this 29th day of April, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 29th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5927

Respondent:

1. Partially accepted in findings of fact 1 and 2.

2. Partially accepted in finding of fact 2.

24. Rejected as being unnecessary.

Note - Where a finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, a conclusion of law, or not supported by the evidence.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Samuel J. Marshall

S. R. Box 1075

Georgetown, Florida 32139

Grant D. Petersen, Esquire Donna M. Griffin, Esquire

1408 North Westshore Boulevard Suite 1000

Tampa, Florida 33607

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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: 92-005927

Orders for Case No: 92-005927