LEE C. SMITH, )
vs. ) CASE NO. 92-6047
Respondent. )
A hearing was held in this case in Tampa, Florida on March 5, 1993 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For the Petitioner: Lee C. Smith, pro se
For the Respondent: Steven C. Ellingson, Esquire
C. Smith, was unlawfully discriminated against by the Respondent, Food Lion, Inc., on the basis of his marital status.
On September 15, 1992, Petitioner filed a Petition For Relief on the basis of alleged discrimination due to marital status with the Florida Commission on Human Relations. This Petition was transmitted to the Division of Administrative Hearings on October 5, 1992. Thereafter, the Respondent filed its Answer to the Petition on October 19, 1992, and on October 20, 1992, filed a Motion to Dismiss the Petition. After some further motion practice, the matter ultimately was set for hearing by the undersigned in Tampa, Florida on March 5, 1993 at which time it was held as scheduled.
At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1 through 5. Respondent presented the testimony of Michael C. Satterfield, Area Perishable Supervisor with the Respondent; Kenneth
T. Koonce a Front End Assistant Customer Service Manager in Respondent's Store
728; and Thomas J. Legett, Area Supervisor for Respondent since 1985. It also introduced Respondent's Exhibits A through E.
A transcript of the proceeding was furnished and subsequent to the hearing, Counsel for Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Petitioner submitted no Proposed Findings of Fact but did submit a "closing statement" in writing which has been carefully considered in the preparation of this Recommended Order.
At all times in issue, Respondent, Food Lion, Inc., operated its food supermarket, No. 728, in Tampa, Florida. Petitioner, Lee C. Smith, was employed by Respondent as manager.
Petitioner was discharged from employment with the Respondent on December 2, 1990. The "constructive advice memo" supporting the discharge indicated the action was being taken because of "dishonesty - fraud - reputation of manager." The background to the charge related that 9 checks, totalling
$1,100.00 were cashed by Petitioner's wife and "possibly endorsed or OK'd by Mr. Smith." The memo went on to further state that the decision [to discharge] was based on current evidence "and also failure to maintain mgt. role." The memo further indicated that while in management training, Mr. Smith had a problem with returned checks and "was documented on same." The memo was signed by Mr.
Legett and was also signed by the Petitioner on December 5, 1990.
Petitioner claims that when he first learned of the check situation, during the period March through June, 1990, when he was a management trainee, on his own initiative and without prompting by anyone in authority, he notified his store manager and assistant manager of the situation and suggested they call in a tel-alert advising all Food Lion stores in the area not to cash any checks for his wife. He was not discharged at that time.
He also claims that after he was promoted to manager, his wife again started passing bad checks without his knowledge. When he found out about them, in October and November, 1990, before he was discharged, he paid some of them off. He also instituted another tel-alert through the Dunedin store, where some of the checks had been written, but he did not alert the people in his own store not to cash them. Apparently, Mrs. Smith cashed some checks in Store 728 but only one was approved by Petitioner.
An area-wide listing of dishonored checks shows some that were cashed by Mrs. Smith. This listing is sent to each store and probably came to Petitioner's store. Petitioner admits he may have seen it but most of the checks written by Mrs. Smith were approved by the assistant manager. Whenever he saw a check listing with his wife's name on it, he redeemed that check, but the listing he saw was for his store only. He claims not to have seen listings from other stores, but from time to time, the manager of other stores would call him to ask if they could take her checks. He claims always to have said no. None of the checks relied upon by Respondent in the discharge action were admitted in evidence.
Petitioner claims that at the time in issue, he had no knowledge his wife was writing the bad checks. During this period, he and his wife were having domestic difficulties. Some of the time they were living together and some of the time they were separated. Even when they were separated, she continued to come into the store for purchases and to cash checks.
Petitioner claims that as a result of his discharge by the Respondent he has been damaged in a total amount of between $452,122.55 and $518,122.55, including legal fees. These sums are based on his salary at the time of his discharge, modified by certain assumptions regarding sick pay, bonus, profit sharing and holiday pay.
At the time of his discharge, Petitioner was earning $550.00 per week and claims he was due an increase to $610.00 per week. Therefore, he claims, his base salary for December, which he was not paid, would have been $2,440.00. Added to that, he claims is 2 percent for sick pay totalling $572.00, a 2 percent bonus of $572.00, a 15 percent profit sharing pay out of $4,290.00 and holiday pay for 6 days at $110.00 per day, for $660.00. This additional amount totals $6,094.00 which, when added to the base salary claimed due amounts to
$8,534.00 for December, 1990, not paid to him because of his termination.
His base salary of $610.00 per week for calendar year 1991, would have totaled $31,720.00 and his insurance benefit would have been an additional
$1,242.60. This totals $32,962.60. Added to that, he claims are the bonuses, sick pay, profit sharing, profit forfeiture, holiday pay at $122.00 per day for
6 days, and two weeks vacation ($1,220.00) for a subtotal of $9,566.00. When this figure is added to his base for 1991, he claims his total income from Respondent would have been $42,528.60 for the year. However, when his actual earnings from Kash & Karry, with whom he found employment after he was discharged by Respondent, in the amount of $13,941.58 are deducted, his actual loss for calendar year 1991 is, he claims, $28,587.60.
Following the same formula, using identical factors but with slightly different amounts for each due to a projected increase in weekly salary, the net loss to Petitioner is claimed to be $19,903.32 for calendar year 1992, and through March 5, 1993, the date of the hearing, his calendar year 1993 loss is claimed to be $6,474.39.
The sum total of the yearly losses is $71,109.77 to which Petitioner has added a 1 percent per month interest figure which totals $19,910.73 for the
28 months in issue. The sum of these figures is $91,020.50. To this Petitioner has also added a 4 year loss of projected profit sharing pay outs had he stayed with Food Lion which he estimates at between $30,000.00 to $45,000.00 per year. At $30,000.00 the total would be $120,000 to which Petitioner has added an unexplained $200,000.00. Adding this to the $120,000.00, and the $91,020.50 amounts to $411,020.50 to which Petitioner has added 10 percent legal fees of
$41,102.05 for a grand total of $452,122.55. Applying the same calculations to a loss of profit sharing figure of $45,000 per year for 4 years, and the unexplained $200,000.00 addition, with similar 10 percent legal fees and the actual claimed out of pocket loss described above, his claim amounts to
$518,122.55.
In support of his claim of Food Lion earnings, Petitioner submitted only one pay slip, for the period ending 12/01/90 which showed his regular earnings to be $1,100.00 and special earnings of $650.00 for the period. The evidence he presented is insufficient to support his monetary claim. His earnings at Kash and Karry are not questioned.
Petitioner's wife's bad check activity first came to light when he was a manager trainee and he paid those checks off immediately. However, in the latter part of 1990, a loss prevention investigation was initiated into alleged cash shortages and bad checks at Petitioner's store. Mr. Satterfield, the Area
Perishable Supervisor was told by the investigator that Petitioner was aware of his wife's passing of bad checks. Mr. Satterfield also talked to other employees. One of these, Mr. Koonce, cashed several checks for Mrs. Smith which had been approved by one of the managers. Petitioner was one of those approving managers on only one occasion. Based on that one approval, which he does not know to have been for a subsequently dishonored check, he merely assumed the Petitioner approved the others. An unsworn written statement to the investigator, Mr. Greer, by Kimberly Lantrip, an employee of another Food Lion store, indicates that Petitioner told the grocery manager it was OK to cash his wife's checks and hid the bad check register bearing his wife's name for several weeks when it came in. This evidence is clearly double and even triple hearsay evidence, however, and though admissible here, is of minimal probative value.
Furthermore, neither were the checks themselves nor photocopies thereof were offered.
Mrs. Smith, by sworn affidavit, also hearsay, indicated that at no time did Petitioner have any knowledge she had written checks in Food Lion stores, nor did he ever approve any for her or tell anyone else to cash them. This statement carries little evidentiary weight. Petitioner clearly had knowledge of his wife's prior check writing activity and, in fact, paid off several. He obviously failed to take appropriate action to correct her activity or to preclude her writing other checks at Food Lion stores.
After the investigation, Satterfield met with Petitioner and other supervisors, and as a result of that meeting, where at least one supervisor recommended termination, Mr. Satterfield, who had observed Petitioner over the months in both training and as assistant manager and saw him do nothing wrong, nonetheless decided to put the Petitioner on indefinite suspension with pay pending further investigation.
Mr. Satterfield then notified the Regional Supervisor and Mr. Legett, the Area Supervisor, of what he had done. The next he heard about it was when the constructive advice memo terminating Petitioner was issued. He thereafter had nothing more to do with the matter.
Mr. Legett was satisfied at the way Petitioner took care of the first series of bad checks written by Petitioner's wife in the Spring of 1990. However, based on what he was told by Mr. Satterfield, and the information contained in the loss prevention investigation, he concluded that Petitioner was aware of the second series of bad checks his wife was writing and did not attempt to stop them. Based on this, which he found showed fraud and dishonesty on Petitioner's part, he decided to discharge Petitioner Before doing so, however, he discussed the matter with Food lion's Vice President for Personnel who agreed with the decision to discharge. While Petitioner's failure to take corrective action to preclude his wife from cashing any further checks at Food Lion stores reflects on his management ability and may support termination for that reason, absent a clear showing of his conspiracy with her, his encouragement of her actions, or his knowing acquiescence in her misconduct, it does not rise to the level of fraud or dishonesty.
Regarding Petitioner's claim for damages, Mr. Legett indicates a proposed raise of $60.00 per week in 1990 is not justified. A maximum raise is
$20.00 per 6 month increment based on performance. Not all managers get raises each year. In addition, continuing employees do not get paid for holidays they don't take off. If the time is not taken, it is lost. However, if a person is terminated, any unused accrued vacation time for that year is paid.
By the same token, sick days are not compensated. Employees receive 2 percent of salary as a sick pay bonus at the end of the year unless too much sick leave is taken. In general, a sick day taken once a week results in a net loss, not earned bonus. Also, profit sharing is not a constant but varies year by year. In 1990 and 1991, the amount was 15 percent. The amount for 1992 had not been determined as of the hearing, but 15 percent is a maximum. In any case, employees do not become eligible to participate in the profit sharing plan until they have been with the company for 5 years. If the employee leaves before the five years are up, the accrued but unpaid profit sharing maintained in his name is forfeited and paid on a pro rata basis to other employees. The most Mr. Legett, an individual relatively high up in management, ever got was 2 percent. He has never received anywhere near 5 percent of his salary.
Effective January 1, 1993, employees contribute $21.00 per month for insurance. Prior to that time, there was no contribution.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner claims that his discharge from employment by the Respondent, Food Lion, Inc., was unlawful because it was based not upon legitimate, nondiscriminatory reasons, but, instead, on his marital status and his wife's misconduct.
The burden of proof, generally, in an employment discrimination case is upon the Petitioner to show, by a preponderance of the evidence, a prima facie case of discrimination. In order to establish a prima facie case, Petitioner must show: (a) he was a member of the protected class; (b) he was performing his duties in a satisfactory manner; and (c) despite his satisfactory performance, he was terminated. If this burden is met, it then shifts to the employer to articulate some legitimate, nondiscriminatory reason for discharging him. If the employer carries this burden, it then shifts back to Petitioner to show by a preponderance of the evidence that the reasons offered by the employer were merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
This standard of proof is also applied in a case involving a claim of discrimination for marital status. Owens v. Upper Pinellas County Association for Retarded Citizens, 8 FALR 438 (1985); Sartin v. Bay Medical Center, 14 FALR 2987 (1992). In these cases, the term "marital status" has been interpreted broadly to include the relationship of the individual to his or her spouse rather than narrowly to include merely the status of marriage. The courts have held that an employer's termination of an employee because of a spouse's actions is not actionable discrimination based on marital status. National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894, 897 (Fla. 5DCA 1988).
In the instant case, the Petitioner was not discharged because he wrote bad checks or committed any type of criminal misconduct. However, the evidence is clear that his wife, with whom he was involved in an on again / off again relationship, over two separate periods, wrote a series of checks to several of Respondent's stores, one of which was managed by Petitioner, and Petitioner, even after being made aware of his wife's actions, failed to take appropriate corrective action. Merely redeeming the checks was not sufficient.
Respondent's management concluded, and properly so, that Petitioner had not demonstrated the necessary management attributes to support continued employment in a management position. This is a legitimate basis for termination. The use of the terms "fraud" and "dishonesty" in the constructive advice memo terminating his employment was surplusage in light of the inclusion therein of an allegation of his failure to fulfill a management role.
To be sure, discharge of an employee because he did not demonstrate requisite leadership may seem unfair, but the law does not protect against unfair business decisions - only against decisions motivated by unlawful discrimination. Turner v. Texas Instruments, Inc., 555 F.2d 1257 (5th Cir. 1977).
In summary, the Respondent's actions were not predicated upon the spousal relationship between Petitioner and his wife. He was not discharged because he was married. He also was not discharged because he committed an unlawful act, though if proven, this would clearly be proper and not discriminatory. In fact, the evidence of record demonstrates that Petitioner was discharged because he did not adequately fulfill the management role for which he had been hired. As a manager, he had the responsibility to, as best he could, insure the protection of his employer's assets. This included identification of potential loss situations and rectifying them.
Here, Petitioner had, early on, been made aware of his estranged wife's predilection toward the issuance of bad checks, especially at Food Lion stores. That he immediately redeemed those of which he was made aware is to his credit. Nonetheless, there appear to be numerous other actions he could have taken to insure further checks were not written or accepted at Food Lion stores. Yet, he took none and his inactivity demonstrates his lack of managerial performance and supports the discharge action.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Lee C. Smith's Petition for Relief from Unlawful Discrimination based on marital status, relating to his discharge from employment by Respondent, Food Lion, Inc., be dismissed.
RECOMMENDED this 13th day of April, 1993, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1993.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6047
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
None submitted.
Respondent's counsel submitted Proposed Findings of Fact but failed to number them. They will be treated paragraph by paragraph, however, in this appendix.
Lee C. Smith
P.O. Box 260922
Steven C. Ellingson, Esquire Arnold & Anderson
229 Peachtree Street, N.W. Atlanta, Georgia 30303
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 which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
