STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6334

) TALLAHASSEE TOYOTA, INC., ) d/b/a TEAM TOYOTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff.

APPEARANCES

For Petitioner: Leslie Holland, Esquire

1405 Opalocka Boulevard

Miami, Florida 33167

For Respondent: Richard M. Powers, Esquire

Richard M. Powers, P.A. 701 Barnett Bank Building

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner was terminated from his employment with the Respondent because of his race, in alleged violation of Sections 760.01-760.10, Florida Statutes (1991).

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of discrimination and a Petition for Relief by Charles Jackson. The Petitioner alleges that he was terminated from his position as a service technician at the Respondent's Toyota dealership because of his race. The Petitioner is black. The Petition for Relief was duly referred to the Division of Administrative Hearings and the undersigned Hearing Officer for the conduct of a formal proceeding, pursuant to Section 120.57(1), Florida Statutes, and Rule 22T-8.016(1), Florida Administrative Code.

The cause came on for hearing as noticed. The Petitioner called witnesses William McCray, Douglas Poppell, Cynthia Mann, and Talmadge Fitzsimmons, as well as testifying on his own behalf. The Petitioner introduced six (6) exhibits into evidence. The Respondent called witnesses Kenneth R. Lobaugh (by deposition) and Daniel H. Fraser and introduced nine (9) exhibits into evidence, including the Petitioner's and Mr. Lobaugh's depositions.

The parties elected to obtain a transcript of these proceedings and to avail themselves of the right to submit proposed findings of fact and conclusions of law. Those proposed findings of fact are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. Mr. Fitzsimmons was a service technician at Team Toyota (Toyota) in the summer of 1989. He was acquainted with the Petitioner, Charles Jackson, and suggested to Mr. McCray, the Service Manager, that he contact the Petitioner when he learned that Toyota had an opening in its service department for a service technician. Acting on Mr. Fitzsimmons' recommendation, Mr. McCray contacted the Petitioner whereupon the Petitioner filled out an application and was interviewed for the job.

   
   

2. The Petitioner completed a written self-evaluation form as part of the application process for the position at Toyota. On the self-evaluation form, he rated himself in a number of areas of automotive mechanic subjects relating to both domestic and imported automobile repairs. In each area, the possible ratings were "well qualified" or "not qualified". The Petitioner rated himself "well qualified" in every area on the form on which he rated himself. In those areas in which he did not rate himself, he testified that he was qualified in each of them. During the interview process, the Petitioner informed Mr. McCray that he had significant experience in foreign car repair. On his application, he listed Williams Garage and Billy Sims Garage in Marianna, Florida, as his two most recent employers. No other employers were listed on his application. In fact, however, he had not worked in an automobile service department before and had no training and little experience in the repair of Toyota automobiles.

   
   

3. Mr. Fraser, at times pertinent hereto, was the Parts and Service Director at Toyota. He has occupied that position since 1987. Mr. McCray was Service Manager at times pertinent hereto. Mr. Fraser oversees both the parts department and the service department and was Mr. McCray's supervisor when the Petitioner was hired. Mr. Fraser approved the hiring of the Petitioner based upon Mr. McCray's recommendation and the Petitioner's representation that he had significant foreign car repair experience.

   
   

4. Mr. McCray acknowledged that he spoke with Mr. Fraser regarding hiring the Petitioner but he, McCray, alone, made the final decision to hire the Petitioner and that Mr. Fraser's approval was not actually necessary. Mr. McCray claimed in his testimony that Mr. Fraser did not agree with his decision to hire the Petitioner because Mr. Fraser did not want to hire a black mechanic in the service department. However, since Mr. McCray insisted that he, alone, made the decision to hire the Petitioner, Mr. McCray's testimony in this regard, if relevant, is not really material. Further, Mr. Fraser actually approved the decision to hire the Petitioner which stands to militate against Mr. Fraser being motivated by any racial prejudice which Mr. McCray seeks to attribute to him. It is clear from Mr. McCray's testimony that he did not get along with Mr. Fraser and did not believe that Mr. Fraser should have been his supervisor. In fact, in a meeting with the President of Team Toyota and Mr. Fraser, Mr. McCray referred to Mr. Fraser as "dead weight". The apparent animosity between Mr. Fraser and Mr. McCray actually resulted in Mr. McCray's termination in March of 1990, approximately one year before the Petitioner was terminated. Because of the circumstances surrounding Mr. McCray's termination and his relationship with Mr. Fraser, little credence is given to Mr. McCray's statement that Mr. Fraser

   did not want a black mechanic in the service department. This conclusion is supported by the fact that Mr. Fraser hired a black service technician prior to the Petitioner's employment and subsequent to the Petitioner's termination, hired three minority service technicians, a black, an Hispanic, and an American Indian. These technicians are currently still employed.

   
   

5. While the Petitioner was employed at Toyota, the service technicians and department were organized into two teams. At the beginning of his employment, some of the service technicians on the Petitioner's team complained to Mr. Fraser regarding the Petitioner's work and being unable to get along with him. Mr. Fraser referred these complaints to Mr. McCray. In an effort to resolve the complaints, Mr. McCray admonished the complaining technicians and moved some team members from team to team to facilitate better working relationships. His efforts were apparently successful and the problems were alleviated.

   
   

6. The Petitioner did not have the work experience in automotive mechanics that he professed to have during the application process. He admitted during his testimony that he had, in fact, been unemployed for approximately three (3) years before his employment at Toyota. He further admitted that he made a mistake when he listed Williams Garage and Billy Sims Garage on his application as his two most recent employers. His most recent employment, three or more years prior to Toyota, was as a tractor operator for a logging business in Blountstown, Florida. He was fired from that job and before that, he was an equipment operator for his brother's logging business for approximately eight

   (8) years. He also worked for Aamco Transmissions, although not as a transmission repair technician. He was fired from that job. He testified that he had done odd jobs for the Williams and Billy Sims Garages but was never on either payroll. Mr. Fitzsimmons was on the Petitioner's service team during the entire period of the Petitioner's employment and testified that the Petitioner did not have the skill level to perform certain jobs. Mr. Fitzsimmons also stated that the Petitioner complained to him concerning being given work which he did not have the skill level to perform.

   
   

7. Roger Perry was also on the Petitioner's service team. He observed that the Petitioner was not capable of doing the more technical service jobs, such as transmission work or work on fuel injection systems. The Petitioner also complained to Mr. Poppell that he was getting major engine repair work, rather than the easier work, such as oil changes.

   
   

8. Mr. Lobaugh replaced Mr. McCray as the Service Manager in March of 1990, when Mr. McCray was terminated. Mr. Lobaugh, in turn, resigned as Service Manager in August of 1991 to take the position of service manager of a Toyota dealership in the Dayton, Ohio area. He testified by deposition. On July 30, 1990, Mr. Lobaugh approved a pay raise for the Petitioner from $9.20 per hour to

   $9.30 per hour. This raise did not reflect any improvement of performance but, rather, was an automatic raise given to coincide with the Petitioner's anniversary date and was simply a length-of-service pay raise not related to performance evaluation.

   
   

9. The 1990 Toyota Certified Technician Program (TCTP) was the training and certification program in effect at the Respondent's dealership while the Petitioner was employed there. The TCTP was established by Toyota USA and was in effect at Toyota dealerships throughout the country. That program has three levels of certification: Level I - Toyota Technician; Level II - Pro Technician; and Level III - Master Technician. At Levels I and II, there are four areas of possible certification. These areas involve engine, drive train,

   chassis, and electrical components of Toyota cars. A Level III - Master Technician is certified in all four areas. Level I certification, which the Petitioner would have had to earn first, required 12 months' experience with Toyota, successful completion of a training course in the area of certification (engine, drive train, chassis or electrical), and a passing grade on the certification test in the relevant area of certification, and also the viewing of certain training videos at the dealership in the area of certification involved. The TCTP training courses were offered in Jacksonville by Southeast Toyota Distributors, Inc. The certification tests were offered by ASE (automotive service excellence) and were given at Lively Area Vocational Technical School in Tallahassee. The purpose and effect of this program was to increase the skill level of service technicians. The goal of the Respondent was to have every service technician certified at some level under this program.

   
   

10. Before a service technician attended a Toyota training course in Jacksonville, that technician would first have to be recommended for that course by the Service Manager and the Service Manager's recommendation would have to be approved by Mr. Fraser. Often, Mr. Fraser would not approve the recommendation when first given. Mr. Lobaugh recommended that the Petitioner take Toyota training course no. 840 in electronic fuel systems, offered in Jacksonville on October 4 and 5, 1990. This was the first time that the Petitioner was recommended. Mr. Fraser approved Mr. Lobaugh's recommendation for the Petitioner and he attended and completed the course. In conjunction with his recommendation, Mr. Lobaugh requested that the Petitioner register for three ASE certification tests. The first of the tests in manual drive train and axles was given on November 8, 1990. The second and third tests in engine repair and brakes, respectively, were given on November 13, 1990. The Petitioner registered for those tests. He did not pass the first or the second test and failed to take the third test. The Respondent was made aware of the test results in February of 1991. Because the Petitioner had completed 12 months' experience with Toyota and had completed training course no. 840, he would have been eligible for certification as a Level I technician in the area of engines had he passed the ASE certification test in engine repair.

    
    

11. The Petitioner informed his supervisor, Mr. Lobaugh, after failing the examinations, that he was not interested in retaking them. Other service technicians had failed ASE tests in the past, but they would then retake the tests they did not pass. The Petitioner acknowledged in his testimony that he understood the training program and the reason for it and that his fellow service technicians were participating in it. He understood that continued training was necessary to increase skill levels and to keep up with the advance in technology in automobile repair. Since the Petitioner refused to retake the certification test which he did not pass, for which he had previously registered, he was not participating fully in the training program.

    
    

12. When the Petitioner was first employed with the Respondent, he was given an employee handbook which set forth the personnel policies of the employer. He read this handbook on the day he was hired, according to his own testimony. That date was August 14, 1989. During his employment, he violated a number of those policies set forth in the handbook. One such personnel policy concerned the unauthorized use of customer vehicles. In the handbook, an example is given to employees involving unauthorized use of a customer's vehicle with the example of use of a customer vehicle to drive to a "7 Eleven". According to the handbook, this is grounds for termination. The Petitioner acknowledged in his testimony that he had violated the policy by going to a McDonald's or to other stores on at least five occasions in customer vehicles. He knew each violation constituted grounds for termination, according to his own

    testimony, although he was not immediately terminated. He did receive a warning about such violations, however.

    
    

13. Another written policy in the handbook involved use of telephones during work hours. According to the handbook, employees were to make or receive telephone calls of an emergency nature only. Violation of this policy stated in the handbook is grounds for dismissal. The Petitioner received upward of 20 personal telephone calls per week. Mr. Lobaugh warned him a number of times about such personal telephone calls and on at least one occasion, also in the presence of Mr. Fraser. According to the Petitioner's testimony, many of these telephone calls were from people who wanted to buy automobile parts from him since the Petitioner could buy the parts at a discount from the dealership. Buying parts from the parts department for third parties also violated a policy in the employee handbook. Employees were permitted to buy parts at 10 percent over cost for their personal vehicles, which was described in the handbook as the employee's vehicle and the vehicle of the employee's spouse. The Petitioner violated this policy by purchasing parts at 10 percent over cost and selling them to third parties at a profit. Both Mr. Lobaugh and Mr. Fraser ultimately concluded that the Petitioner was apparently using company time and the privilege to buy parts at a discount to engage in a side business. This conclusion is somewhat supported by the Petitioner's testimony, as well as the testimony of Mr. Poppell, who stated that the Petitioner told him that he owned a small used car lot. Mr. Lobaugh testified that the Petitioner told him that he owned a large inventory of cars, and Mr. Lobaugh observed that the Petitioner worked on cars in the service department which were not customer cars and warned him about it. Whether or not the Petitioner was actually attempting to engage in a profitable side business through the purchase of discount parts from the employer, both Mr. Lobaugh and Mr. Fraser definitely believed that he was doing so. Mr. Lobaugh also warned him on several occasions concerning installing parts on customer cars which were not authorized by the customer or the service department. Mr. Lobaugh also observed that the Petitioner had a problem with "come backs", which meant that customers had returned cars complaining that the original problem had not been satisfactorily repaired so that the work had to be redone.

    
    

14. Mr. Lobaugh also had to warn the Petitioner concerning a developing absentee problem. During March of 1991, the month he was terminated, he left work early on four different days.

    
    

15. The Petitioner testified that he believed that he was treated fairly by Mr. McCray and Mr. Lobaugh during the period of his employment but simply did not understand why he was terminated. He was terminated by Mr. Lobaugh on March 22, 1991, and the Petitioner acknowledges that on the day of his termination, Mr. Lobaugh told him some of the reasons for the decision to terminate him which involved his unwillingness to participate in the training program and other problems concerning which he had been warned, including the continuation of excessive telephone calls and the absences of March, 1991. Other employees, in fact, had been warned about excessive telephone calls, as well, and both the Petitioner's and other employee telephone calls had been cut off with the receptionist in the office merely taking messages for those employees after the problem became severe. The Petitioner was not singled out by the employer for warnings and discipline concerning excessive telephone calls.

    
    

16. In his typewritten termination report dated March 22, 1991, Mr. Lobaugh stated in the "additional comments" section that the Petitioner's technical skills were below Toyota standards. He stated that the Petitioner had failed two ASE tests and then refused to take the third test and that there were

    various customer complaints about his work. He also stated that the Petitioner spent too much time on the telephone during work hours and that he was soliciting personal repair work during work hours. Mr. Lobaugh also wrote that the Petitioner was found working on unauthorized vehicles during work hours and had excessive absences. Mr. Lobaugh decided to terminate the Petitioner and that decision was later approved by Mr. Fraser. Mr. Fraser stated that the reasons for the termination were those reasons contained in Mr. Lobaugh's typewritten termination report. He and Mr. Lobaugh also discussed additional problems which the Petitioner had with the unauthorized use of customer vehicles and unauthorized repair of customer vehicles.

    
    

17. One day following his termination, the Petitioner asked Mr. Lobaugh for a written explanation of the termination so he could show it to other prospective employers. In response to this request, Mr. Lobaugh gave the Petitioner the original of the handwritten termination report on the company's form. The Respondent did not retain a copy of that handwritten report. Incompetence and unacceptable performance are listed under the "reason for separation" on the handwritten termination report. The "additional comments" section is not completed on that report. In the employee evaluation section of the company's termination report form, the possible ratings are unsatisfactory, fair, satisfactory, good and excellent. In the categories of job knowledge and quality of work, the Petitioner was rated fair on both the typewritten and handwritten termination reports. In the category of initiative, the Petitioner was rated fair on the handwritten termination report and unsatisfactory on the typewritten termination report. In the categories of attendance and cooperation, the Petitioner was rated satisfactory on the handwritten termination report and unsatisfactory on the typewritten termination report. Mr. Lobaugh was not asked to testify on the subject of the handwritten termination report at his deposition which was admitted into evidence. While the ratings in the three areas in the employee evaluation section of the handwritten termination report are somewhat more favorable than those on the typewritten version, the handwritten termination report does not truly contradict the typewritten report which contained additional information in the "additional comment" section concerning the reasons for the Petitioner's termination. These two reports are certainly not mutually exclusive.

    
    

18. The Petitioner was replaced in late March of 1991 by Mr. Frank Barnes, a white male, who on date of hire was certified as a Level III - Master Technician. That is the highest certification possible under the TCTP. At the time of his termination, the Petitioner had no certification at all due to incompletion of the initial training program phase.

    
    

19. Mr. Leroy Stinnet and technicians Perry, Fitzsimmons, and Poppell are all white. They were all employed as service technicians during the month of March, 1991, when the Petitioner was terminated. Mr. Stinnet was a Level III - Master Technician. He was terminated by Mr. Lobaugh on June 6, 1991, after the Petitioner's March, 1991 termination. He was terminated for failure to put a part on a customer's car. Mr. Perry, a Level II - Pro Technician, was terminated by Mr. Lobaugh on July 23, 1991 for verbal abuse. He was later rehired and terminated again for unauthorized use of a customer's vehicle. Mr. Fitzsimmons, a Level II - Pro Technician, was terminated for excessive absenteeism. Mr. Poppell, a Level I - Toyota Technician, was terminated for leaving work early and for a "bad attitude". Mr. Barnes, a Level III - Master Technician and the Petitioner's replacement, also was later terminated for absenteeism. Mr. McCray, the Petitioner's original supervisor, also testified that while he was Service Manager, he terminated numerous white service

    technicians for various reasons, including tardiness, quality of work, and personal problems.

    
    

20. Mr. Poppell testified that he overheard Mr. Fraser make a comment to the effect that the Petitioner should only be used for cleaning up. He further testified that he did not know when or even in what year the comment was made but that it was made at a time when Mr. Fraser was upset over the Petitioner's work quality. Mr. Fraser denied making the comment. Because the comment made is not connected in point of time and subject matter to the employment decision and the stated reasons for it involving the Petitioner's termination, evidence of the comment is not material to the employment decision to terminate the Petitioner and, considered with other evidence concerning Mr. Fraser's and the Respondent's employment practices, it is not direct evidence of discriminatory intent.

    
    

21. Mr. Fitzsimmons testified that he overheard Mr. Fraser make a comment to the effect that if he ever got rid of the Petitioner, he would not hire another black again. Mr. Fitzsimmons stated that this comment was made shortly after Mr. McCray was terminated; however, Mr. Fitzsimmons did not know anything about the context in which the comment was made, if it was made. Mr. Fraser denied making the comment. The evidence shows that Mr. McCray was terminated in March, 1990, one year prior to the termination of the Petitioner. Therefore, a comment, if made at all, was made at least one year prior to the Petitioner's termination. Further, the evidence establishes that the employment decision to terminate the Petitioner was initiated by Mr. Lobaugh and not by Mr. Fraser.

    Mr. Lobaugh, therefore, initially formed the intent that performance by the Petitioner was insufficient enough in the areas discussed and found above to justify termination, before the question of the Petitioner's termination had ever occurred or been put before Mr. Fraser. Because there is no demonstrated nexus between the alleged comment by Mr. Fraser and the employment decision, evidence of the comment is not material to the employment decision to terminate the Petitioner and, because of other preponderant evidence of Mr. Fraser's and the Respondent's nondiscriminatory employment and personnel practices is not evidence of direct discriminatory intent. The fact that subsequent to the Petitioner's termination, Mr. Fraser hired three minority service technicians, including one black technician, who are all still presently employed by the Respondent, as is Mr. Fraser, militates against the conclusion that the comment, even if it was made, had any bearing on the employment decision regarding the Petitioner. The fact that a number of white employees, both before and immediately after the Petitioner's termination, were terminated for similar reasons also militates against there being any direct or inferential discriminatory intent involving the discipline meted out to the Petitioner. The evidence simply does not support such discriminatory animus.

    
    

22. The Petitioner earned $21,000.00 in 1990 from the Respondent. On March 22, 1991, the termination date, his gross wages were $4,914.07 for 1991. He received $11,180.00 in unemployment compensation benefits since the termination. Since the date of termination, he has not been regularly employed. He testified that three weeks prior to the hearing, however, he began doing odd jobs for the Proctor & Proctor dealership in Chattahoochee, Florida. He had been paid a total of $100.00 for that work. Since the date of termination, he has not submitted any written applications for employment to any employers. He testified that records of a work search, which may have been submitted to the Florida Department of Labor and Employment Security Division of Unemployment Compensation, were lost by that agency. He further testified as to his own work search, consisting of walking into various prospective employers' places of

    business, apparently generally without appointments, and asking for work. He was denied on each instance.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. The Respondent, at all times material hereto, was an employer within the meaning of Section 760.03(6), Florida Statutes (1991). The Petitioner did not actually introduce evidence concerning whether the Respondent was an employer within the meaning of this Section. However, official recognition was taken of such a finding by the Florida Commission on Human Relations and that issue is not contested by the parties.

    
    

25. Because Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, at 42 U.S.C., Section 2000E-2, the Federal case law under Title VII has been held to be applicable to cases arising under the Florida Act. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443,

    445 (Fla. 1st DCA 1990).

    
    

26. In McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the U.S. Supreme Court established an order for the presentation of proof and an allocation of the burdens of proof in a Title VII discriminatory treatment case. In such a case, the plaintiff must first establish by a preponderance of the evidence a prima facie case of discriminatory treatment. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to establish a prima facie case in a discharge situation, the petitioner must show that he is a member of a protected minority; that he is qualified for the job from which he was discharged; that he was discharged; and that his former position was filled by a non-minority. See, Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991), quoting from Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982). If a petitioner proves a prima facie case of discriminatory discharge, then the burden shifts to the respondent employer to articulate a legitimate nondiscriminatory reason for the discharge. It is important to note that the respondent does not have a burden of persuasion shift to it at any point in the proceedings. The respondent's burden is only to bring forth evidence to rebut the prima facie showing by the petitioner by introduction of admissible evidence of a legitimate reason for the discharge. Burdine, supra, at 254-255. Once the respondent meets the burden of producing evidence of a legitimate, nondiscriminatory reason for the employment action, the petitioner must prove by a preponderance of the evidence that the proffered reason for discharge is pretextual and is not the true reason. Thus, the ultimate burden of proof or persuasion also remains with the petitioner. See, St. Mary's Honor Center, 125 L.Ed.2d at 416; Burdine, supra, at 255.

    
    

27. Three elements of the Petitioner's prima facie case are established. He is black or afro-american and, therefore, a member of a protected minority. He was discharged and he was replaced by a white service technician. The Petitioner, however, failed to establish that he was actually qualified as a service technician at the dealership. He misrepresented both his work experience and his level of skill when he applied for the position. In fact, the record reveals that he had never been employed as an automobile mechanic on a full-time basis, but had only been employed on a cash basis to do odd jobs in

    two garages in Marianna, Florida, many years prior to being hired by the Respondent. He complained about being given work which he was not qualified to do and about not being given the easier work, such as oil changes. His termination report indicates that his level of skill was below Toyota standards and the other evidence corroborates that. Although he understood the importance of the training and certification program, he voluntarily failed to complete that program after not passing two ASE certification tests. He did not take the third test for which he was registered and recommended for by his employer.

    Although completion of the training program was not mandatory, it was shown to be the best extant measure of an employee's skills and qualifications. The failure to complete the first phase of it, with ample opportunity to do so, is unrefuted evidence of disqualification.

    
    

28. When he was discharged, the Respondent had good reason to believe and, in fact, did genuinely believe that the Petitioner was not a qualified Toyota service technician, even of the Level I standard. Level I is the lowest, least- trained grade of Toyota technicians. The Respondent replaced the Petitioner with Mr. Barnes, who, although white, was also a Level III - Master Technician. This is the highest certification given under the TCTP, and there is unrebutted evidence that Mr. Barnes was much more qualified for the position than the Petitioner. Thus, the Petitioner has not established by a preponderance of the evidence that he was actually qualified for the position from which he was terminated nor that he was replaced by someone of a different race who had the same or lesser qualifications. Thus, all of the elements of a prima facie case of racial discrimination have not been established by a preponderance of the evidence.

    
    

29. Even if it be assumed that the Petitioner established a prima facie case for discriminatory discharge on the basis of race, compelling evidence has been introduced of a legitimate, nondiscriminatory reason for the discharge. In the face of that evidence, the Petitioner has not shown that the proffered reason for discharge is pretextual and that the true reason for discharge was due to his race. All of the reasons for termination listed in the termination report were supported by competent, substantial evidence. Although it is clear that the Petitioner, by his own admission, could have been terminated on numerous occasions for violation of the personnel policies referenced above, the Respondent chose to give him a number of opportunities to correct mistaken conduct and to conform to company policies. In fact, the evidence shows that four of his fellow white service technicians, as well as Mr. Barnes, were subsequently terminated for reasons which were not as compelling as the reasons for the Petitioner's discharge. The Petitioner testified unequivocally that he felt that he was treated fairly at Toyota during the period of his employment and that he simply did not understand or agree with the reasons for termination. That, however, is not sufficient proof that discrimination was lodged against him because of his race. The cumulative effect of the stated reasons for his discharge, which were based upon proven conduct by the Petitioner, and not racial animus, ultimately resulted in his discharge.

    
    

30. Moreover, in the above Findings of Fact, it has been determined that the racial remarks attributed to Mr. Fraser, if, indeed, they were made, which was not clearly established, were insufficiently connected to the employment

    decision to be viewed as material evidence of discriminatory intent to discharge the Petitioner. As the court observed in Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989):

    
    

    Only the most blatant remarks, whose intent could be nothing other than to discriminate

    . . . constitute direct evidence of discrimination.

    
    

    See, also, Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir. 1988). Even if an inference of discriminatory intent could be drawn from such remarks, if made, in the absence of other evidence of racial bias, the inference is insufficient to find that the Petitioner was discharged because of his race in light of the overwhelming evidence that he was discharged for reasons stated by the Respondent and found above. This is especially true in light of the evidence that Mr. Fraser, both before and after the termination of the Petitioner, had hired and retained employees of the same minority and, correspondingly, has terminated white employees similarly situated to the Petitioner for less flagrant violations. See, Woody v. St. Claire County Commission, 885 F.2d 1557, 1561 (11th Cir. 1989).

    
    

31. Accordingly, it is concluded that a prima facie case of discrimination in the Petitioner's discharge on account of his race has not been established. Be that as it may, it is further concluded that a legitimate, nondiscriminatory business reason for the termination has been established by the Respondent and preponderant evidence which would show that it is pretextual has not been put forward, in turn, by the Petitioner.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations denying and dismissing the Petition for Relief filed by the Petitioner in this proceeding.

DONE AND ENTERED this 3rd day of March, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 3rd day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6334

Petitioner's Proposed Findings of Fact 1-7. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

3. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

11-12. Accepted.

13-18. Accepted, but not itself dispositive of material issues presented.

19. Rejected, as contrary to the preponderant weight of the evidence. The payroll status change or raise was not based upon a performance evaluation.

20-34. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

38-42. Accepted, but not itself materially dispositive to resolution of the issues presented. The fact that certification is not actually required does not render it irrelevant to judging the qualifications of an employee.

1. Rejected, as irrelevant.

2. Accepted.

3. Accepted, but immaterial in part and subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Accepted.

47-48. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not based upon evidence that these employees were not disciplined for personal telephone calls. In fact, they were later terminated and it is not clear whether personal telephone calls were or were not included in the cause for termination. In any event, the Petitioner was not terminated merely for receiving personal telephone calls but for a number of reasons as found above.

49. Rejected, as immaterial and as not constituting a finding of fact based upon preponderant evidence.

50-51. Accepted.

52. Accepted, but not itself materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter.

53-57. Rejected, as not supported by preponderant, credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.

58-61. Rejected, as not entirely supported by preponderant evidence of record, as partially immaterial and as subordinate to the Hearing Officer's findings of fact on the same subject matter.

62-65. Rejected, as not based upon credible testimony. All the witnesses supportive of these proposed findings of fact were terminated and all of them had had an unsatisfactory relationship with their employer before that termination, which is deemed to have likely colored their testimony, especially in view of the fact that Mr. Fraser had hired black service technicians both before and after the Petitioner's hiring and his termination. The fact that Mr.

Fraser made those statements has not been proven and had he made the statements, they are not shown to be related to the employment decision which was made in the Petitioner's situation, as indicated in the above Findings of Fact and Conclusions of Law.

66-68. Accepted.

Respondent's Proposed Findings of Fact

1-22. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and to the extent that they differ from the Hearing Officer's findings of fact on the same subject matter, they are deemed immaterial, unnecessary, and subordinate to the findings of fact by the Hearing Officer.

COPIES FURNISHED:

Leslie Holland, Esquire 1405 Opalocka Boulevard

Miami, FL 33167

Richard M. Powers, Esquire Richard M. Powers, P.A.

701 Barnett Bank Building Tallahassee, FL 32301

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

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: 92-006334

Orders for Case No: 92-006334