STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LARRY E. GRAY and )
FREDERICK WHITE, )
)
Petitioners, )
)
vs. ) CASE NOS. 93-0316
) 93-0317
RUSSELL CORPORATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, a duly-designated Hearing Officer of the Division of Administrative Hearings, on December 6, 1993, in Marianna, Florida.
APPEARANCES
For Petitioner: Paul H. Amundsen, Esquire
Amundsen and Moore 909 East Park Avenue
Tallahassee, Florida 32301
and
Mary C. O'Rourke, Esquire
325 West College Avenue Tallahassee, Florida 32301-1499
For Respondent: Chris Mitchell, Esquire
Michael D. Giles, Esquire Constangy, Brooks and Smith 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North
Birmingham, Alabama 35203-2602 STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the above- named Petitioners suffered an unlawful employment practice within the purview of the pertinent provisions of Chapter 760, Florida Statutes, and the case law advanced by the parties in support of their positions herein concerning their discharge from employment by the Respondent on November 12, 1991, and concerning the alleged failure by the Petitioners to receive certain employment promotions during their tenure with the Respondent corporation prior to that date.
PRELIMINARY STATEMENT
This cause arose upon the filing of allegations of discrimination by the Petitioners, Larry E. Gray and Frederick White, with the Florida Commission on Human Relations. They have alleged that they were discriminated against by the Respondent, the Russell Corporation, on account of their race (black) as to instances when they were denied promotions and culminating in their discharge from employment with that Company. The matter was investigated by the Florida Commission on Human Relations (Commission) as to each Petitioner. Ultimately, a determination by the Commission of "no cause" was entered as to both Petitioners indicating that the Commission found no cause to justify determining that an unlawful employment practice had occurred as to the Petitioners concerning these claims. The Petitioners availed themselves of the opportunity to contest that initial agency decision by requesting a formal administrative proceeding on their petitions for relief. In due course, the petitions and request for hearing were transmitted to the Division of Administrative Hearings and ultimately the undersigned Hearing Officer. The Petitioners' cases were consolidated by the Hearing Officer on the basis of the commonality of factual and legal issues, circumstances and witnesses.
The cause came on for hearing as noticed. During the three days of hearings, the Petitioners testified on their own behalf and presented the testimony of nine witnesses. Thirty-nine (39) of the Petitioners' exhibits were received into evidence. The Respondent presented 16 witnesses, and 21 exhibits of the Respondent were admitted into evidence.
Subsequent to the hearing, after ordering a transcript thereof and requesting an extended briefing schedule, the parties submitted Proposed Recommended Orders, and the Petitioners presented a "memorandum of law and fact" and "response to Respondent's Proposed Final Order". The proposed findings of fact submitted by the parties have been considered in the formulation of this Recommended Order and again specifically addressed in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioners, at times pertinent hereto, were employees of the Respondent at its facility known as the "Distribution Center" in Marianna, Florida. The Petitioners' last employment positions prior to termination were as "lift operators", meaning that they operated equipment analogous to "lift trucks" or "fork lifts" in moving packing cases of goods manufactured by the Respondent in and around its Distribution Center facility, also known as the "Pack and Hold Department". It is undisputed that the Respondent meets the definition of an "employer" within the meaning of Chapter 760, Florida Statutes. There is no dispute that the jurisdictional requirements have been met concerning the claims which the Petitioners have advanced for wrongful, discriminatory discharge. It is disputed that the Petitioners' claims concerning alleged discriminatory failure to promote the Petitioners are jurisdictional. In fact, the charges of discrimination asserted by the Petitioners concerning their unrealized claims to various job promotions were filed more than 180 days after they were denied the various promotions. Those promotion claims are considered, however, on the issue raised by the Petitioners concerning the "doctrine of continuing violation", in terms of those alleged promotion denials being "serial violations". The Petitioners maintain that the alleged promotion denials constitute a series of discriminatory acts against given "discriminatees", culminating in the jurisdictional, discriminatory act of
their termination. The Petitioners do not contend that these are "systemic violations under that discrete theory of the 'doctrine of continuing violation.'"
The Respondent's Florida facilities consist of two plants; one is called the "Distribution Center", which is the warehouse facilities and operations of the Respondent. The other plant consists of the so-called "garment decoration" facility and operation of which the "Embroidery Department" is an integral part. The Petitioners were employees at the Distribution Center in its "Pack and Hold Department".
Petitioner White first became employed by the Respondent in August 1987. His first position was as a custodian and he was next made a "utility worker" in the Shipping and Receiving Department. He next attained a promotion to "lift operator" in the Pack and Hold Department, which job he retained until he was terminated on November 12, 1991, in the action which gave rise to this proceeding.
Petitioner Gray was first hired in March 1988, also as a utility employee, but in the Pack and Hold Department of the Distribution Center. He was promoted to a lift operator job in a different department, the ASRS Department, approximately three months after his hire. He remained a lift operator at the time of his discharge on November 12, 1991, although by that time, he was a lift operator in the Pack and Hold Department.
Discriminatory Termination Charges
On the date of the Petitioners' suspension, November 1, 1991, a party was held during the lunch period in the Respondent's "break room", to honor a departing employee of the Embroidery Department. It is a common and customary practice of the Respondent, and that department, that when employees are having such a party, the employees involve contribute either food, in the form of covered dishes, or money to provide for the food and other refreshments for the party. This was done by the employees of the Embroidery Department, who were conducting the party or celebration in question. Some of the employees contributed money to pay for chicken which was cooked by the husband of Catherine Moses Edwards, their supervisor, and some employees brought food themselves. The Respondent encourages such employee recreational opportunities and supports them as, for example, by giving additional or flexible time for lunch periods for employees involved in such festivities.
In addition to the covered dishes, the employees of the Embroidery Department and several employees from other departments who were invited to the party contributed money to buy the chicken. Several employees of the Embroidery Department set up the food tables for the party in the break room before it started. While these employees were so occupied, several employees from other departments, including the Petitioners and other employees from the Pack and Hold Department came into the break room for their lunch break. The Petitioners approached one of the employees, who was helping set up food in the break room for the Embroidery Department party, Ms. Dorothy Loraine Potter. Petitioner Gray asked Ms. Potter if they could have some chicken and Ms. Potter informed him that she could not give him permission to have the chicken because it did not belong to her but belonged to all of the Embroidery Department personnel involved in the party.
The Petitioners and other employees of the Pack and Hold Department then sat at a table where the food had already been placed for the Embroidery Department's party by Ms. Potter and others. Some of the food, including some of the chicken, had been distributed to the Embroidery Department employees on a platter, and otherwise, when Petitioner Gray picked up the large brown grocery bag holding the remainder of the chicken belonging to the employees of the Embroidery Department, waved it in the air, and asked if "anybody wanted some of his chicken." This was after he had already been informed by Ms. Potter that he did not have permission to have any of the chicken and, therefore, he had no authorization to give it to anyone else. Petitioner White, who was present when Ms. Potter denied them authorization to have some of the chicken also ate chicken from the brown grocery bag containing the chicken belonging to the Embroidery Department employees and to others who had paid for it, which Petitioner was mockingly waving around in the air and offering to others. Petitioner White additionally offered a piece of the chicken belonging to the Embroidery Department to the Pack and Hold Department Lead Person, Tommy Blount, although Mr. Blount did not accept the chicken.
Additionally, Petitioner Gray also ate a piece of pie directly from the serving pan intended for the purpose of serving Embroidery Department employees and their guests, instead of from an individual plate upon which he should have eaten the pie, had he had permission to do so, which he did not. Petitioners Gray and White's behavior in eating the other employees' food elicited derogatory comments from a number of the Embroidery Department personnel, particularly employee Michael Edge. This clearly indicated that they did not have permission to take the Embroidery Department food, even had not Ms. Potter already informed them that they had no such permission. In spite of this, neither Petitioner showed any remorse or effort to apologize for taking the food which did not belong to them and was the property of the Embroidery Department employees and their invitees. The Petitioners, particularly Petitioner Gray, exhibited a taunting, mocking attitude toward those employees of the other department who had bought and paid for the food. His actions caused a number of the Embroidery Department employees and their guests to feel considerably upset and affronted by this conduct, concerning which they complained to their supervisor, Mrs. Moses Edwards.
The Petitioners later claimed that certain white employees, Brian Cooley, Captain Miles, and Don Wilkinson, who were not employees of the Embroidery Department, also ate the food at the Embroidery Department party and yet were not disciplined by the Respondent. The evidence establishes, however, that these employees were not disciplined because they were not blameworthy. Employees Wilkinson and Cooley had actually been invited by the employees of the Embroidery Department to the party and had paid money to help purchase the food they consumed at the party. Captain Miles was offered a piece of pie by Petitioner Gray and first indicated that he would accept it but then declined. He told Petitioner Gray, in the presence of witness Tommy Blount, "nah, I changed my mind, I better not have any."
The preponderant evidence clearly establishes that the Petitioners did not have permission to partake of the food in question. In fact, one Embroidery Department employee interviewed in the investigation process who testified at the hearing, Michelle Brock, heard Petitioner Gray state "if they didn't want us to eat the food, they shouldn't have put it on our table." Additionally, Petitioner White admitted twice to Mr. Howard in a telephone conversation after his suspension, to which conversation Assistant Plant Manager Allan Cutts was a party, that he knew that he did not have permission to eat the Embroidery Department food in question.
The Embroidery Department supervisor was Mrs. Moses Edwards. She was not present in the company break room at the time the incident took place. She had been off the company premises briefly on a personal errand. Upon her return, approximately five of her employees came to her, considerably upset, to complain about the Petitioners' actions during the department's party. Those employees were Michelle Brock, Shea Fisher, Shannon Stewart, Michael Edge and Todd Baya, all of whom, with the exception of Todd Baya, testified on behalf of the Respondent in this proceeding. The reports from those employees, their demeanor and the demeanor of the Embroidery Department employees generally after the party, clearly reflected that the actions of the Petitioners had caused a significant altercation and upset to those employees, as described by Mrs. Moses Edwards when she testified that ". . . everyone-the department itself, everyone was upset by the fact that it was our dinner. And these men decided to help themselves and make a mockery of it."
Upon receiving the report of her employees concerning the incident, she went to the break room to investigate. Upon being questioned by Mrs. Moses Edwards, Petitioner Gray denied having eaten the food. Petitioner White was silent when asked by Mrs. Moses Edwards if he had eaten the food at the party but nodded in assent to Mr. Gray's response in the negative. The testimony of Mrs. Moses Edwards and Shea Fisher to the effect that she confronted the Petitioners with these questions and received these responses might be argued to have been contradicted by the testimony of Tommy Blount to the effect that Mrs. Moses Edwards only questioned him about the incident and what he knew about his employees eating the Embroidery Department food. He testified to the effect that he did not see Shea Fisher present with Mrs. Moses Edwards or at least standing behind her when she questioned him. Witness Blount, however, came to the incident quite late, after the altercation had occurred. His testimony that he did not remember Shea Fisher's presence, as opposed to outright denial of her presence, and the circumstance of his arriving late, after the incident actually occurred, could also be taken to mean that he simply was not able to observe Mrs. Moses Edwards, in the company of Ms. Fisher, questioning the Petitioners. In any event, however, the Respondent's investigation conducted by Mr. Howard and, to some extent, Mr. Cutts, involving the questioning of numerous employees who observed the incident and were present, shows that the Respondent independently confirmed that the food was obtained and eaten without permission by the Petitioners, in the manner described and found above.
After her initial inquiry, Mrs. Moses Edwards reported the incident to her manager, Mr. Steve George, the Plant Manager of the Garment Decoration Plant, and to Mr. Allan Cutts, the Assistant Plant Manager for the entire Distribution Center. She also conversed with personnel manager, John Howard, during the course of his investigation about the incident.
Based upon the information provided to Mr. George and Mr. Cutts by Mrs. Moses Edwards, the matter was reported to Jeffrey Morris, the Distribution Center Plant Manager, who ordered the suspensions of the Petitioners, as well as Monroe Rhymes and Donnell Barnes, pending a full investigation being conducted by John Howard, the Personnel Manager for the Distribution Center, and by Mr. Cutts, the Assistant Plant Manager for the Distribution Center. Mr. Barnes and Mr. Rhymes were also employees of the Pack and Hold Department. Mr. Howard was directed to conduct his investigation and then report his findings to a review committee, which would review the incident and determine what, if any, disciplinary action was warranted. The information available to the Respondent on November 1, 1991, the day of the incident, indicated that the four employees named above, each of whom is black, had eaten the Embroidery Department food,
even though they were not employees of that department. The Respondent's knowledge of the incident, at that time, did not indicate that any other employees from a department other than the Embroidery Department had eaten the food in question.
It is the Respondent's regularly-followed policy and practice that the Personnel Manager must investigate the facts and circumstances leading to an employee's suspension, before a decision can be made to discharge that employee. The Personnel Manager then reports the findings of his investigation to a review committee composed of supervisors and department managers of the Distribution Center. The committee considers the circumstances resulting in the employee being suspended, the Respondent's disciplinary policies with regard thereto, and all of the evidence which supports or does not support disciplinary action or the level of disciplinary action. The committee then considers whether discharge or some other disciplinary action is warranted under the particular circumstances of the case. An employee is terminated only if a majority of members of the review committee agree that discharge is the appropriate discipline and the ultimate decision is then made by the Plant Manager, Jeffrey Morris. While it is true that the employee does not have an opportunity to personally appear before the review committee, if the employee disagrees with the decision reached by the review committee, he may appeal that decision to a review board under the company's regular policy and procedure concerning disciplinary matters. Indeed, the Respondent has a uniform practice and procedure of using this review committee process in making decisions whether to terminate both black and white employees and has customarily followed it at the Distribution Center.
Mr. Howard and Mr. Cutts interviewed numerous witnesses, including the Petitioners, Mrs. Moses Edwards, Todd Baya, Michael Edge, Shannon Stewart, Michelle Brock, Shea Kent, and Gary Smith. They made their final investigatory report to the members of the review committee on November 7, 1991. In the course of the investigation, the Petitioners were given an opportunity to explain their version of the events in question to Mr. Howard and Mr. Cutts. Petitioner Gray denied having eaten the food from the Embroidery Department party without having permission to do so, but Petitioner White twice admitted to Mr. Howard that he had eaten chicken without permission during their telephone conversation, to which Mr. Cutts was also a party.
After conducting his investigatory interviews and considering the information thus gained, Mr. Howard determined that employees Monroe Rhymes, Donnell Barnes, and the two Petitioners, each of whom is black, were the people who had eaten the food without being members of the Embroidery Department staff or invitees to the party. Mr. Howard determined from the information available to him that Mr. Rhymes had not been present when Petitioner Gray was denied permission to eat the Embroidery Department food and believed that Petitioner Gray was offering him his own chicken when Mr. Rhymes accepted it and ate it. It was also determined by Mr. Howard that, indeed, Mr. Barnes had eaten a plate of the food from the Embroidery Department but that had been given him by employee Marvin McCallister of that department. He had prepared the plate for his own use but later decided not to eat it and offered the food to Mr. Barnes, who accepted it. Thus, it was Mr. Howard's belief and determination that Mr. Barnes and Mr. Rhymes were not at fault for eating the food which belonged to the Embroidery Department and to the Department's invitees. Mr. Howard also determined that the Petitioners had, indeed, eaten the food without permission, knowing that they did not have permission, and had engaged in blatant, taunting behavior toward their fellow employees in the Embroidery Department while doing so, particularly in the case of Petitioner Gray offering it generally by waving
it around and asking if anyone in the room wanted chicken, which he represented to be his. Mr. Howard then considered all the information provided to him through his investigation and reported his findings to the members of the review committee.
The Respondent uses a "progressive discipline system" for employees who commit various infractions. An employee receives an informal warning called a "written verbal" for minor offenses for the first occasion. Following that, for a second minor offense, an employee receives a formal warning ("first written"), and for a third minor offense receives a final warning, also called a "second written". Any subsequent minor offense committed so that the employee has accumulated four minor offenses renders the employee subject to discharge.
An employee receives a formal warning for a major offense, also called a "first written" and if a second major offense is committed within a six-month period thereafter, is subject to discharge. Major offenses include "insubordination", "defacing . . . company property . . .", "taking company property from the plant without permission", and "horseplay." After a six-month period from a major offense elapses, the offense is removed from the employee's record. Certain offenses come under the category "intolerable offenses" under the company's regular disciplinary policy and for these offenses, an employee can be discharged the first time such an offense is committed. Intolerable offenses include "willful damage to company property or property of others", which the Petitioners were charged with, "leaving the plant during a shift without permission", and "gross insubordination." Mr. Howard, as Personnel Manager, had the duty of insuring that the disciplinary policy was uniformly and fairly applied. In this connection, the company had a policy of employing discretion and a consideration of all surrounding facts and circumstances in deciding whether to terminate an employee, even when the employee had accumulated sufficient reprimands or warnings for minor, major or intolerable offenses, before the Respondent made the decision to terminate. Termination under those conditions was not always a foregone conclusion for both black and white employees.
The "decision makers" in the situation at bar involving the Petitioners was the Plant Manager, Jeffrey Morris, and the members of the review committee. Mr. Morris suspended the Petitioners and the other two employees. The review committee then considered all facts and circumstances surrounding the events provided to them by the investigation conducted under the leadership of Mr. Howard and then made the decision that the Petitioners should be discharged. The members of the review committee were Allan Cutts, Steve George, John Spivey, John Howard, and Jason Davis. All of the members hold management positions with the company. Mr. Spivey is black, and the remaining members of the committee are white.
After receiving the information which Mr. Howard gained through his investigation, the review committee considered his findings concerning which employees were involved in eating the Embroidery Department's food at the November 1, 1991 party without permission. The committee concluded that Mr. Barnes had eaten food at the party after being given that food by a member of the Embroidery Department. The committee also concluded that because of the actions of Petitioner Gray, Mr. Rhymes had a good-faith belief that he had appropriate permission, through Petitioner Gray, to eat the food offered to him. Thus, Mr. Barnes and Mr. Rhymes exhibited no intent to eat food which did not belong to them with knowledge that that was the case. Therefore, as a result of the committee's deliberations, both Mr. Barnes and Mr. Rhymes were found not to be at fault, were exonerated and returned to work.
The committee determined, however, that the Petitioners should be discharged. After considering all of the information gathered by Mr. Howard and the options it had with respect to discipline, the committee unanimously recommended that the Petitioners be discharged. That decision was based upon the committee's conclusion that Petitioner Gray, with Petitioner White in his presence, asked an Embroidery Department employee, Ms. Potter, if they could partake of the Department's food. Ms. Potter denied permission. Even though the Petitioners had been told that the food was for the Embroidery Department's party and that their request for permission to eat the food had been denied, they ate some of it anyway; and Petitioner Gray offered the food to other unsuspecting employees, who ate some of it. When the Petitioners were confronted by a supervisor from the Embroidery Department about the incident, Petitioner Gray repeatedly denied taking the food. Petitioner White remained silent but nodded his head in assent to Petitioner's Gray's response to the inquiry. Later, Petitioner White admitted eating the food without permission. Further, the committee considered the effect on employee morale of the Petitioners' actions on November 1, 1991, particularly the blatant, taunting nature of Petitioner Gray's actions and, to a lesser extent, Petitioner White's, toward their fellow employees. They demonstrated a lack of remorse or effort to apologize for their conduct. The committee was sensitive to a perceived need to take strong disciplinary action in order to preserve employee morale of those victimized by the incident and other employees who knew of it, and to show the committee's sensitivity to the necessity that co-workers respect each other's property and feelings.
This was a seemingly harsh remedy and, indeed, committee member John Spivey, the black member of the committee, expressed regret that the incident had to proceed to that eventuality and would have preferred that the employees apologize or otherwise make redress to the Embroidery Department employees who had been affronted. Mr. Spivey, however, voted with the majority. His regret was not that the Petitioners were punished as they were but that that punishment had become necessary, in the view of the committee, including Mr. Spivey, because those Petitioners had exhibited no remorse or regret for their actions and, indeed, had misrepresented their actions and versions of the situation.
Mr. Spivey expressed regret that the Petitioners had not offered to apologize or replace the food they had taken.
Thus, the review committee decided unanimously to discharge the Petitioners. They were then informed of their right to appeal that decision to a review board hearing procedure. Petitioner Gray never requested an appeal of his discharge decision to the review board. Petitioner White initially indicated to Mr. Howard, when Mr. Howard told him of the decision, that he would seek such an appeal; but Petitioner White thereafter elected not to pursue the matter.
In an attempt to demonstrate that the Respondent maintained or allowed a work place environment or climate fraught with racial animus, Petitioner White testified that employee Robert Hawkins (Hopkins) repeatedly told racially- derogatory jokes in the work place. Petitioner White maintained in his testimony that even after he complained to his Lead Person, Doyle Pumphrey, the jokes continued. Petitioner White's testimony is corroborated by that of Michael Capps, who indicated in his testimony that he had told racial jokes in front of others, including blacks and supervisory personnel, but acknowledged that he had never received any complaints from the Petitioners or anyone else concerning this behavior. He testified that he had heard his superior, Mr. Ramos, make a racially-derogatory comment concerning black employees.
The Respondent then presented a series of managers and supervisory personnel, who testified that they had never heard racially-derogatory jokes told in the work place and denied having received complaints about such jokes or comments being told at the Distribution Center. Witness Ramos denied making the comment attributed to him by Mr. Capps. Even though Mr. Capps acknowledged that he had told such racially-derogatory jokes himself, his testimony is of questionable credibility because of the unrefuted evidence concerning the hostile relationship Mr. Capps had with the Respondent company involving the circumstances surrounding his leaving its employ. The company felt that it had reason to believe that Mr. Capps was involved in breaking and entering the premises of the company with which the Respondent shared warehouse space in Dothan, Alabama, where Mr. Capps was working at the time. It conducted an investigation of the matter and was on the point of firing Mr. Capps when he decided to quit, immediately before he was terminated. Mr. Capps, when he testified, was no longer employed by the company, left under hostile circumstances, and thus had no demonstrable motive to conceal the fact that he had told racially-motivated jokes, but also had a motive, based upon his poor personal relationship with the Respondent, to cast the Respondent in an unfavorable light with his testimony. Petitioner's White testimony, even if not considered self-serving, does not reveal that Lead Person, Doyle Pumphrey, ignored his complaints concerning racially-derogatory jokes when Petitioner White reported them to him. Petitioner White, himself, testified that when he complained to Mr. Pumphrey, the jokes stopped for "a couple of days." Thus, even though the testimony indicates that employee Robert Hawkins (Hopkins) continued telling racially-derogatory jokes thereafter, Petitioner White's testimony could lead one to infer that Mr. Pumphrey must have taken some step to stop such conduct (even if relatively ineffective), since the jokes stopped for a "couple of days." When employee Hawkins (Hopkins) continued such conduct, employee Calvin Brelove, according to Petitioner White's testimony, decided to ignore Lead Person Pumphrey and carry his complaint concerning the jokes to supervisor John Story. The testimony does not indicate that Mr. Story ignored the complaint, although it does not indicate what, if any, action he took. Petitioner White's testimony does reveal, however, that after Mr. Brelove complained to Mr. Story, the jokes "eventually stopped" apparently some time after Petitioner White "changed shifts." The Respondent presented a number of supervisors and management personnel, who denied hearing such racial jokes told in the work place and denied receiving complaints about them being told. Thus, it cannot be determined that preponderant evidence was presented establishing that the supervisors or managers made such racial jokes or comments, themselves, or knew that they were occurring in the work place and took no action. Preponderant evidence was not presented to establish that, even if racially- derogatory jokes or comments were related in the work place, they were anything other than isolated incidents among employees. There is no preponderant evidence to establish that any manager or supervisor was aware of such conduct and failed to respond. There is absolutely no evidence to indicate that any decision-maker concerning the events involved in this proceeding, Plant Manager Morris and the members of the review committee, have made racially-derogatory remarks or jokes about the Petitioners or other black persons generally nor that they condoned such conduct in the work place.
Disciplinary Action Comparisons
The Petitioners presented evidence and testimony concerning purportedly lesser disciplinary actions taken by the Respondent against several white persons for supposedly equivalent conduct to that for which the Petitioners were discharged, thus claiming that the Petitioners were
discriminated against on account of their race. In this connection, the Respondent maintains, and adduced preponderant evidence, which shows that the Petitioners were discharged for willful destruction of the property of others, aggravated by the blatant, mocking manner in which the offense was committed, in disregard of the feelings or rights of their co-workers, with no indication of remorse or intent to apologize to those wronged employees exhibited by the Petitioners.
"Willful destruction of company property or the property of others" is an "intolerable offense" in the company's progressive disciplinary policy. It is found, in consideration of the facts found above, that the Petitioners partook of the food in question, knowingly, without permission and that their acts were willful and that they did constitute the destruction of the property of others (co-employees) in a manner aggravated by their lack of contrition, remorse and characterized by a blatant, mocking attitude displayed particularly by Petitioner Gray. Concerning a number of the exemplar employees whom the Petitioners advanced as instances of white employees who were accorded less punishment for similar conduct, it is found that the instances of destruction of property by both black and white employees in the examples which follow involve the different element of accidental destruction of property or lack of intent to do so, which renders the situations not the same as that involving the Petitioners.
Scott Jackson, a white employee, was issued a major reprimand on September 5, 1990 for horseplay after breaking a windshield in a company van. He could have been classified as committing willful destruction of company property, which is a termination offense. After investigation of the incident,
however, the Respondent's managers concluded that his actions constituted an act of "horseplay", which is justification for a major reprimand, which he received. The destruction of the windshield, as company property, was deemed incidental to the act of horseplay, constituted an accident, and was not willful destruction of property. Therefore, he was not discharged.
Scott Jackson was issued another major reprimand on September 12, 1991 for insubordination. This was beyond six months from his first major reprimand and, therefore, was not an incident which in the aggregate made him eligible for termination. He received this reprimand, rather than being terminated, after a full review of the facts and circumstances by the review committee. His insubordination involved a cursing incident involving his supervisor, Mr. Ramos, the object of his conduct. It is noteworthy that the review committee's decision was not really a unanimous decision; and Mr. Ramos, who sat on the committee, wished to terminate Mr. Jackson.
On January 12, 1991, Rick Roesler (white) used company materials to construct a chair for his use at work. This incident could have constituted willful destruction of company property, a dischargeable offense. After investigating all of the facts and circumstances, however, Mr. Roesler was issued a major reprimand for "loafing and misuse of company property." Again, on November 22, 1991, Mr. Roesler was issued a major reprimand for horseplay after he sprayed glue on a telephone in the Respondent's facility, placed a call to that telephone so that another employee would pick up the telephone and be stuck by the adhesive. The gravamen of this incident really involved horseplay, rather than destruction of company property. In fact, it is not actually shown whose property the glue was but that factor was incidental to what was really an act of horseplay, a major reprimand instance, rather than a termination offense.
Chip Baxter, a white employee, was issued a reprimand on January 2, 1991 for leaving company property without permission. Under the disciplinary procedure prevailing at the Respondent's facility, that behavior could have resulted in being considered an "intolerable offense", which could result in termination. After investigating the matter, however, the Respondent's managers determined that Mr. Baxter should be accorded a major reprimand, instead of a termination-eligible offense, because he had informed his lead person that he was leaving the premises, which he mistakenly believed was adequate notice to the management.
Travis Corbin (white) was accorded a major reprimand on November 17, 1989 for "violation of safe practices." Then on January 24, 1990, he was issued a minor reprimand for "improper use or care of company property." If his second reprimandable offense had been considered to be willful destruction of company property, which it was not, he would have been subject to termination under the progressive disciplinary procedures.
White employee Gerald Rutherford was issued a reprimand on March 22, 1991 for causing a major disturbance in a work area by "popping plastic bags after being told not to and yelling and hollering." When his misconduct was evaluated by the review committee, the committee emphasized its concern with the disturbance in the work place his actions caused and was not concerned with the fact that technically the plastic bags were company property. In reality, the bags were refuse, had already been used, and were not capable of reuse for any beneficial purpose.
White employee Cynthia Diane Simms was reprimanded by the Respondent on October 12, 1990 for using company property (presumably thread and a sewing machine) to sew company designs on personal clothing.
White employee Bobby Davis was issued a major reprimand on December 11, 1991 for defacing company property after puncturing a packing case with his fist.
In response to these examples advanced by the Petitioners to the effect that the Respondent discriminated against the Petitioners on the basis of their race because the above-mentioned white employees were not similarly disciplined for committing offenses purportedly similar to the misconduct committed by the Petitioners, testimony and evidence was produced by the Respondent concerning employees and their situations, to be compared with the Petitioners' white comparative employees who were not discharged for actions that the Petitioners maintain could have been considered willful destruction of company property.
In this regard, Randy McMillan, a black employee, was issued a major reprimand, instead of termination, after he bent a support of the Respondent's building by hitting it with a forklift and then failing to report the incident.
Claude Ratliff, Jr., a black employee, was issued a major reprimand on August 23, 1991 after damaging company property with a forklift. This reprimand resulted in Mr. Ratliff's termination; however, he was not terminated for destruction of company property. Rather he was terminated because that reprimand resulted in an accumulation of sufficient reprimands within a six- month period so that he was dischargeable under the Respondent's customarily- followed, progressive disciplinary policy.
The Respondent offered, in comparison to the Petitioners' white comparative employees, who were not discharged for insubordination, the following examples:
Larry Collins, a black employee, was given a major reprimand on January 16, 1991 for unacceptable behavior and language toward a supervisor, which occurred on January 12, 1991. This discipline resulted from operation of the company's review board procedure whereby it overturned a review committee's recommendation that Mr. Collins be terminated. This offense and the reprimand given for it are equivalent to that accorded Scott Jackson's behavior on September 12, 1991 and the subsequent discipline he received in the cursing incident involving supervisor Ramos.
Larry Collins was also issued a reprimand for insubordination on September 17, 1991, instead of being discharged, for "failing to carry out an assignment when directed to do so". If his conduct had been so characterized, it would have been justification for termination. The decision to reprimand him, rather than terminate his employment, was made by a review committee by a 3 to 2 vote.
Conversely, Nick Atkins, a white employee, was terminated on August 1, 1989 for "behavior unbecoming and for profane language to fellow employees and supervisor." Mr. Atkins' conduct had included certain threatening remarks to a fellow employee.
David Godwin, a black employee, was given a major reprimand on August 23, 1989, instead of being discharged, for "making threatening remarks to Pack and Hold Lead Person in front of a witness."
James Hunter, a black employee, was issued a major reprimand on May 21, 1991, instead of termination, for insubordination and failing to follow company procedures.
Patrick Wilkinson, a white employee, however, was discharged on December 26, 1991 for gross insubordination.
The Respondent also advanced the following employee disciplinary examples in comparison to the Petitioners' white comparative employees, who had been issued reprimands for violation of a safe practice or horseplay.
In this regard, Robert Hopkins, a white employee, and Claude Ratliff, a black employee, mentioned above, were both involved in an incident of horseplay on May 20, 1991, in which Mr. Ratliff was injured. Both employees were issued a major reprimand for this incident.
On November 20, 1990, Patrick Wilkinson, a white employee, was issued a major reprimand for violation of safe practices.
On October 15, 1991, Patrick Wilkinson was involved in an incident of horseplay in the work place with James Wilson, a black employee. Both employees were suspended immediately and a review committee considered their cases. After considering all of the facts and circumstances, the review committee determined that major reprimands should be issued to both employees. During its deliberations, the committee considered terminating Mr. Wilkinson's employment, the white employee, because at the time of its deliberations, Mr. Wilkinson already had an active major reprimand on his employment record, meaning one that was no more than six months old. After full consideration of
all the facts and circumstances, however, the review committee by a 3 to 2 vote narrowly decided to issue a second major reprimand to Mr. Wilkinson, but not to terminate his employment.
It is found that the Respondent's disciplinary procedures and policy allowed the review committee and the company managers' discretion in judging each incident of misconduct. The evidence establishes that the Respondent's management personnel had reviewed all of the circumstances surrounding each incident of misconduct and based upon the totality of circumstances, exercised discretion in determining what disciplinary action was appropriate for that situation. Both black and white employees have been discharged by the Respondent for similar violations of work rules. Further, however, both black and white employees have benefited from the Respondent's disciplinary review process by being issued reprimands in instances when, in the exercise of discretion, they could have been discharged, if the Respondent's policy had simply been mechanically applied in such instances. Moreover, the Petitioners produced no evidence of white comparative employees who were involved in activities that could have been classified as willful destruction of company property or the property of others and who were at the same time involved in blatantly taunting the persons whose property was being destroyed, with attendant damaging effects on employee morale, and yet who were disciplined differently from the Petitioners for their misconduct.
In fact, one can infer from the evidence that the company has been somewhat lenient with both black and white employees involving destruction of company property but that it was additionally motivated by concern for employee morale in according more harsh discipline to the Petitioners for destroying the property of co-employees, aggravated by circumstances showing blatant disregard and lack of remorse concerning the rights of those co-employees. Therefore, the clearly harsh discipline meted out to the Petitioners has a rational basis in the company's interest in preserving peace and morale amongst employees in the work place, in this only instance of record involving destruction of co- employees' property as opposed to company property. It has not been established by preponderant evidence that any of the disciplinary or promotional decisions concerning the Petitioners or other black employees were motivated by racially- discriminatory intent, nor that a racially-hostile environment prevailed by intent or condonation in the work place.
The Petitioners also contend that one of their white comparators, Scott Jackson, who was issued a major reprimand for insubordination, was then promoted by the Respondent. However, the evidence reflects that he was not actually promoted but worked temporarily in a higher paying job, on a periodic basis, as a lift operator under the company practice known as "red lining".
This means that he was paid at the lift operator's hourly rate, which was higher than his normal rate of pay, while he was performing those duties. He was not singled out for an opportunity to work in a higher paying job after receiving the reprimand, however. The Respondent allowed other employees in Mr. Jackson's job category, black and white, to work in a lift operator job when the need arose for an additional operator. At one point, prior to the Petitioner's discharge, the Respondent regularly needed employees to work in this capacity in its Dothan, Alabama, warehouse, some distance from the Marianna, Florida, facility. The Respondent's managers developed an alternating schedule to allow all employees in the Pack and Hold Department to have a fair chance to work in Dothan at the higher hourly rate. Eventually, due to the distance, inconvenience and longer hours involved, the Pack and Hold employees tired of working in Dothan and it became difficult to fill those duties. Because of this, the Respondent then asked for volunteers to work in Dothan. Mr. Jackson
was one of only three persons who volunteered for that regular assignment to work in Dothan, even though it offered a higher hourly rate of pay. Neither of the Petitioners volunteered to work in the Dothan warehouse under those circumstances, although given the opportunity to do so. This is an element of the lack of initiative and leadership observed in them by their supervisor, Mr. Ramos, and others in terms of their consideration for promotions and, particularly, promotion to "Lead Person" status, as opposed to their race being the reason.
In addition to the testimony regarding the white comparators in terms of disciplinary actions, the Petitioners maintain that the Respondent gave false or incomplete information to the Florida Commission on Human Relations in response to the charges of discrimination. Because these are de novo proceedings, the proceedings and information considered by the Commission in the free-form stage of this matter was ruled not to be relevant; however, inquiry into this subject matter was allowed on the question of credibility of the Respondent's testimony and evidence. The Petitioner challenged the credibility of the Respondent's testimony by asserting that it had omitted information regarding notice of interest jobs and discharges from rosters it had submitted to the Commission during its investigative process. The Respondent, however, explained inconsistencies between the notice of interest job information and discharge information submitted to the Commission. In fact, after additional testimony and examination of the Petitioners' documentary evidence, the Respondent demonstrated that out of five notice of interest jobs which the Petitioners initially attempted to show had been omitted from materials submitted to the Commission, only one job out of a total of 61 was actually found to have been omitted from the documents produced by the Respondent. Additionally, in response to the Petitioners' contention that information regarding discharges had been intentionally omitted in the submittals to the Commission, the Respondent showed that, indeed, it had identified only one employee, a black employee by the name of Patrick Green, whose discharge information had been omitted from the list submitted to the Commission.
This evidence shows that the record from which the information submitted to the Commission was obtained was prepared by clerical employees in the Respondent's personnel department, as a part of routine record keeping, not as discreet record keeping solely for the purpose of preparation for this litigation. Further, although the Respondent's records and data submitted were not error free, there was insufficient, preponderant evidence adduced by the Petitioners to support a finding that the Respondent's management has intentionally concealed or distorted information in its employment records which it submitted to the Commission or to the Hearing Officer in this proceeding, so as to support a finding that its evidence in this regard lacks credibility.
Promotional Issues
In April 1991, Petitioner Gray expressed interest in an "order control clerk" job at the Respondent's Distribution Center. The order control clerk is a "notice of interest" job, but it paid less than the lift operator job which Petitioner Gray held when he applied for the order control clerk's job. It primarily involves answering telephone calls from customers and sales persons or managers to determine the status of particular orders. The order control clerk job was filled on April 19, 1991 by Wendy Forsyth, who is white. Petitioner Gray offered no evidence to show that he did not know in April 1991 or should not have reasonably known at that time that he had not been awarded the order control clerk job which he sought. Ms. Forsyth was selected to fill that job because she was believed to possess the best communications, organizational, and
computer skills of the applicants for the job, which the Respondent considers to be essential for the performance of the clerk's job. In fact, unlike Petitioner Gray, Ms. Forsyth had both on-the-job computer experience with the Respondent and college level computer experience and training courses.
In March 1991, Petitioner Gray signed a "notice of interest" form that had been posted by the Respondent to allow employees to express their interest in being considered for a "quality auditor" job vacancy in the packing department. The quality auditor job, like the order control clerk job, is a "notice of interest job" and paid less than the lift operator job held by Petitioner Gray at the time he signed the notice of interest form. The vacancy was filled on March 8, 1991 by Scott Partin, a white employee. Petitioner Gray offered no evidence to show that he did not know in March 1991, when the quality auditor job he sought was filled nor that he did not know or should not have reasonably known, at that time, that he was not awarded the job. The Respondent selected Mr. Partin because he had experience working in the "packing and prepping" department performing the specific work that the quality auditor in that department is charged with inspecting. Petitioner Gray had never worked in the packing department. The Respondent thus considered Mr. Partin to be the most qualified candidate for the job and selected him rather than Petitioner Gray or any of the other persons who expressed an interest in that job.
Both the quality auditor and order control clerk jobs are notice of interest jobs. For those types of jobs, the Respondent uses a formal application procedure to allow employees to express an interest.
Petitioner Gray also maintains that the Respondent failed to promote him in favor of equally or less-qualified white employees by promoting Ricky Blankenship and Rodney Capps (both white) to the job of "Lead Person." The Respondent does not use any formal mechanism for announcing Lead Person job vacancies nor a formal application system. However, when such vacancies arise, the Respondent selects the person to fill the job by considering whether a candidate possesses the required initiative to take on the additional responsibility and leadership duties; whether he or she possesses the required communication skills and personal relationship skills required for the job; and whether the candidate's overall work and attendance record are good. Such an evaluation involves the consideration of both objective and subjective qualification standards.
The evidence establishes that Ricky Blankenship was promoted to Lead Person in the shipping department on July 8, 1991. The evidence showed that at the time of Petitioner Gray's discharge, Rodney Capps had not actually been formally promoted to the job of Lead Person but, rather, had been used as a temporary Lead Person on a periodic basis. Petitioner Gray offered no evidence that he did not know in July 1991 that Mr. Blankenship, rather than himself, had been promoted to the Lead Person job. Moreover, Petitioner Gray did not offer any evidence that he should not have reasonably known in July 1991 that he was not awarded the Lead Person job awarded to Mr. Blankenship. Likewise, Petitioner Gray offered no evidence that he did not know when the Respondent began using Mr. Capps rather than Petitioner Gray in the role of temporary Lead Person nor did he prove that he should not have reasonably known of this fact at the time that it occurred, since he would have noticed that fact in the normal course of his duties as an employee at the Respondent's facility.
The Respondent considered Mr. Blankenship to be the most qualified candidate for the Lead Person job for which he was promoted because he had worked in both the Pack and Hold Department and the Shipping Department, was familiar with the operations of both departments, which are interrelated, and because of his leadership, communication and interpersonal, employee- relationship abilities. Mr. Capps was qualified for the Lead Person job because in the course of his employment with the Respondent, he had demonstrated leadership, initiative, good communication, and interpersonal relationship skills of a higher degree than other employees and possible promotees. Mr. Blankenship had characteristically demonstrated the initiative to volunteer for extra duty when it was necessary and to always cheerfully perform any task required of him. In comparison, Petitioner Gray had only worked in the Pack and Hold Department. His work history did not indicate that he possessed the initiative and leadership capabilities nor the communication or interpersonal relationship skills that the Respondent looks for in its Lead Persons, as shown by the testimony of Supervisor Ramos. Managers Ramos' and Morris' testimony establishing Mr. Blankenship's superior qualifications for the position was borne out to some extent by Petitioner's Gray own testimony to the effect that he was more interested in an easier job, than in making more money, when he was testifying concerning the order control clerk's position. This exhibited attitude concerning that position, tends to corroborate Mr. Ramos' testimony concerning Petitioner Gray's lack of leadership and initiative concerning the question of promotion to the Lead Person position itself.
Moreover, at the time the Petitioners' employment by the Respondent was terminated, the Pack and Hold Department had two Lead Persons, one for the first shift and one for the second shift. One of these Lead Persons is Mr. Tommy Blount, who is black. He was selected to fill the Lead Person job on the first shift in the Pack and Hold Department in April 1991 which tends to show that the Respondent's articulated bases for selection of certain personnel for promotion positions, including the Lead Person's job, are not pretextual and are not grounded in racial animus.
Petitioner Gray claims that the Respondent discriminated against him also by denying him a promotion to a truck driver position, instead promoting two white employees, Messrs. Evans and Smothers. Mr. Evans was promoted to truck driver on April 16, 1990. Mr. Smothers was promoted to such a position on July 31, 1991. Petitioner Gray did not offer any evidence to show that he did not know nor that he should not have reasonably known, when the truck driver job vacancies he claims were awarded. Petitioner Gray never sought a promotion to the job of tractor-trailer truck driver anyway. Instead, Petitioner Gray's interest in the truck driver job was actually elicited by the Respondent's Distribution Center Plant Manager, Jeffrey Morris, when he initiated a conversation with Petitioner Gray concerning Petitioner Gray's military truck driving experience. In fact, Plant Manager Morris actually encouraged Petitioner Gray to seek such a truck driver promotional position.
Petitioner Gray testified that he did not know whether Mr. Evans or Mr. Smothers possessed a license to drive a tractor-trailer truck before they were hired to drive such equipment for the Respondent and he did not produce evidence to show that he was equally or more qualified to drive tractor-trailer trucks than Mr. Evans or Mr. Smothers.
The Respondent, however, showed that it had issued Petitioner Gray a company driver's permit to allow him to independently drive smaller straight-van trucks, vans and cars. The Respondent also issued Petitioner Gray a learner's permit which allowed him to drive a tractor-trailer truck in the company of a licensed driver, as a training effort to determine if he could be qualified to be permitted to drive tractor-trailer equipment. Thus, the Respondent gave Petitioner Gray an opportunity to demonstrate that he could safely operate a tractor-trailer truck by letting him ride and learn to drive one in the company of a duly-licensed driver (Tim Edenfield). After trying this arrangement for approximately a week, the licensed driver, however, reported to the Respondent that Petitioner Gray was unable to correctly and safely drive a tractor-trailer truck and did not think that he would be able to do so. Based upon this information, the Respondent did not promote him to that position; and at no time during his employment with the Respondent did Petitioner Gray ever become appropriately licensed to drive a tractor-trailer truck.
The Respondent employed evidence concerning Petitioner Gray's driving record and attendant moving violations in the course of the hearing. This evidence was allowed solely on the basis of any reflection it might have on the credibility of Petitioner Gray's testimony concerning his denial of certain violations on his driving record or failure to accurately remember them, for impeachment purposes. The evidence is not admitted or considered on the question of Petitioner Gray's qualifications at the time the employment promotional decision concerning the truck driver position was made by the Respondent. Mr. Edenfield's driving record likewise is not probative of any issues in this case, since Mr. Edenfield was already licensed and employed as a truck driver at the time the employment decision concerning Petitioner Gray's truck driving position was made. Mr. Edenfield's qualifications are not relevant in any event, since it is the relative qualifications of Petitioner Gray versus the two persons who were actually hired as truck drivers, instead of Petitioner Gray, whose relative qualifications are relevant. In that connection, no evidence was adduced to show that Mr. Evans and Mr. Smothers were not qualified for the truck driver positions nor were less qualified than Petitioner Gray.
Finally, all of the promotions concerning which Petitioner Gray complains occurred more than 180 days before he filed his charge of discrimination with the Commission on April 20, 1992. They occurred more than
180 days after he knew or reasonably should have known under the circumstances that he had not received the promotions in question.
Petitioner White's Promotional Claims
Petitioner White claims that the Respondent discriminated against him concerning a promotion because he was passed over for a promotion to Lead Person in favor of allegedly equally or less qualified white employees when the Respondent promoted Ricky Blankenship, David Wilkinson, and Doyle Pumphrey to the job of Lead Person. The Respondent, as found above, does not utilize a formal mechanism for announcing Lead Person job vacancies nor a formal application process. However, when such vacancies arise, the Respondent does have reasonably objective standards for making promotion decisions for those positions, and the decision to promote is not made by a single decision maker. Recommendations are made by the supervisory personnel of an employee being considered for such a promotion, and the decision is then made by the Plant Manager, Mr. Morris.
Findings are made above concerning Mr. Blankenship's promotion and the Respondent's reasons for it. Mr. Pumphrey was promoted to Lead Person in the Pack and Hold Department on May 20, 1991. Mr. Wilkinson was promoted to Shipping Department Lead Person in March of 1989. All of them are white persons. Petitioner White offered no evidence that he did not know when these comparators were promoted, nor did he show any reason why he should not reasonably have known of such occurrences when the promotions became effective.
The Respondent, as found above, considered Mr. Blankenship to be the most qualified candidate for the Lead Person job because he had worked in both the Pack and Hold and Shipping Departments and because of the skills he exhibited in leadership, communication, and interpersonal, employee-relationship skills, which the Respondent believes requisite for success in a Lead Person position. Mr. Pumphrey was considered and promoted to the Lead Person job by the Respondent's managers primarily because of extensive leadership experience gained by working for approximately 12 years as a department manager for another company (Woolworth). Witnesses, Robert Gainer and Wilbur Ramos, and Plant Manager, Jeffrey Morris, who were involved in the promotional decisions concerning employees Blankenship, Wilkinson and Pumphrey, did not believe that Petitioner White possessed the requisite interpersonal relationship skills, leadership skills, and initiative to render him equally or more qualified than those employees for the Lead Person job. They based this assessment upon their own experience in observing Petitioner White's work habits, attendance record, and relationships with fellow employees.
Petitioner White presented no testimony or documentary evidence in support of any claim regarding a promotional decision other than the Lead Person promotions. Moreover, Petitioner White testified that he did not recall seeking an order control clerk job. The order control clerk job paid less than the lift operator job he held at the time Ms. Forsyth was awarded the order control clerk job. Moreover, Petitioner White testified that he is not interested generally in taking a job that would have involved a pay cut. No other evidence was offered by Petitioner White to support any claim by him with regard to being denied the order control clerk job. Even if he had actively sought that position, he offered no evidence that he did not know in April 1991 or that he should not have reasonably known, at that time, that he was not awarded the order control clerk job which he sought.
The Petitioners have established no preponderant direct evidence of discrimination in this proceeding. The direct evidence concerning racial jokes or comments was not attributable, by any evidence, to the decision-makers in this proceeding, the committee and Mr. Morris. In view of the Findings of Fact made above concerning the question of racially-derogatory jokes and comments, it is not found that the work place was fraught with racial animus or was a racially-hostile environment. Moreover, although the Petitioners do not have to establish that all black employees were discriminated against in terms of discipline or promotion in order to prove that they were discriminated against, the evidence which shows that both black and white employees were accorded lesser discipline, under circumstances when they could have been terminated and that both black and white employees were terminated for the same types of conduct, and the evidence and findings referenced above concerning the promotional decisions, shows that the disciplinary procedures and promotional decisions conducted by the Respondent were not carried out against the Petitioners with any racially-discriminatory motive or intent, even if a different person making the decisions in the Petitioners' cases, concerning their termination, might have been inclined to accord a less harsh penalty.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).
Section 760.10(1), Florida Statutes, makes it unlawful for an employer to discriminate against an employee because of that person's race. Because of alleged discriminatory acts attributed to the Respondent occurred before October 1992, the requirements for filing of a timely charge of discrimination with the Commission are as set forth in Section 760.10, Florida Statutes (1991). See, Laws of Florida (1992), c. 92-177, S.13. Section 760.10(10), Florida Statutes (1991), provides that any person aggrieved by a violation of that section may complain to the Commission within 180 days of violation. This provision of the Act, when read in conjunction with paragraphs (12) and (13) has been held to mean that any complaint not filed within 180 days of the alleged violation is an untimely and barred complaint. Ali v. City of Clearwater, 60 F.E.P. Cases 590, 593-94 (M.D. Fla. 1992); Thompson v. Xerox Corp., No. 90-574-CIV-J-16, 1991 WL 119114, at 2, 55 F.E.P. Cases 924, 925-26 (M.D. Fla. 1991), aff'd, 958 F.2d 1083 (11th Cir. 1992); see, generally, Kourtis v. Eastern Airlines, 409 S.2d 139 (Fla. 4th DCA 1982), in which a charge of discrimination was dismissed by the Commission for failure to file within 180 days of the alleged violation.
Chapter 760, Florida Statutes, is patterned generally after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000E, et. seq. See, Hargis
v. School Board of Leon County, 400 S.2d 103, 108 n.2 (Fla. 1st DCA 1981).
Thus, federal decisions construing similar provisions of Title VII should be accorded great weight in construing similarly-cast Florida statutory provisions. See, Pasco County School Board v. PERC, 353 S.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (Fla. 1985).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 F.E.P. Cases 965 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 258, 25
F.E.P. Cases 113 (1981), the U.S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases, where, as in this case, there is no direct evidence of discrimination. The burden of proof was allocated by the U.S. Supreme Court in Burdine, as follows:
First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.
Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not its true reasons, but were a pretext for discrimination.
The federal burden and allocation of proof standards have been adopted in Florida by the Commission and Florida courts as being applicable to cases arising under Chapter 760, Florida Statutes. See, School Board of Leon County
v. Hargis, supra.; Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5477 (1985); Jo Nees v. Delchamps, Inc., 8 FALR 4389 (1986).
Whether a petitioner has demonstrated a prima facie case of discrimination is a factual question that must be resolved by asking whether an ordinary person could reasonably infer discrimination from the facts shown, if they are unrebutted. See, Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443, reh'g denied, 765 F.2d 154 (11th Cir.), cert. denied, 474 U.S. 1005 (1985).
If the trier of fact accepts the sufficiency of the Petitioners' evidence to establish a prima facie case, the Respondent must then rebut the presumption of discrimination thus created by articulating a legitimate, non- discriminatory reason for the employment decision involved. See, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The Respondent can satisfy this burden merely by presenting evidence sufficient to raise a genuine issue of fact concerning whether it has discriminated.
Once the Respondent has articulated a non-discriminatory reason, the burden then shifts to the Petitioners to prove, by a preponderance of the evidence, that the Respondent's articulated reason is pretextual for what really amounts to illegal discrimination. See, Burdine, 450 U.S. at 233; and McDonnell Douglas, 411 U.S. at 804. This evidence may consist of properly-drawn statistics, racist comments by the persons responsible for the employment decision, comparative evidence, or by proof that the asserted reason is unworthy of belief. See, Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987), where this test was applied in an age discrimination case context.
It is important to note, however, that in the Burdine decision, supra., the ultimate burden of persuasion remains with the charging party, the petitioner, at all times to show intentional discrimination by the respondent. That burden of persuasion never shifts, rather, merely, the burden of going forward with evidence in the manner asserted in the above test shifts between the parties. In a disparate treatment case, the petitioner's ultimate burden is to show that he was treated differently because of his race. Morrison v. Booth, 763 F.2d 1366, reh'g denied, 770 F.2d 1084 (11th Cir. 1985). Thus, the issue to be resolved does not concern whether the Respondent made an appropriate and fair employment decision in this case or whether its employment and disciplinary policies are insensitive or unfair; but, rather, the issue is whether the Respondent, in making its employment decision, treated the Petitioners differently from other employees who violated its policies because of the Petitioners' race. See, Gilchrist v. Bolger, 733 F.2d 1551, 1553-54 (11th Cir. 1984)(quoting from Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1092 (5th Cir. 1975).
The Discharge Claims
The Petitioners may prove a prima facie case of unlawful discrimination with respect to their discharge by showing that they are members of a protected class; that they were discharged; that at the time they were discharged, they were performing their jobs at a level that met their employer's legitimate expectation; that they did not violate the policy of procedures for which they were discharged; or even if they did so violate it, that similarly- situated white employees who engaged in similar acts were not discharged. See, Green v. Armstrong Rubber Company, 612 F.2d 967, 968, reh'g denied, 615 F.2d 919 (5th Cir.), cert. denied, 449 U.S. 879 (1980).
The Petitioners, as black persons, are members of a protected class of individuals protected under the above statute. There is also no question that the Petitioners were discharged and at the time they were discharged, they were satisfactorily performing their respective jobs, meeting the employer's legitimate expectations. Whether the Petitioners violated a policy of procedure of their employer while similarly-situated white employees, who engaged in similar conduct were not discharged, is subject to dispute, however.
The Petitioners produced evidence regarding similarly-situated white employees who purportedly violated the same or similar rules as the Petitioners, who were not discharged. Some of this conduct was shown not to actually involve conduct in violation of the same or similar rules as the Petitioners because, for instance, of the lack of willfulness involved in damage to property. Some of it was sufficiently similar, so that an ordinary person might "reasonably infer" discrimination from those facts shown, if those facts were unrebutted. Thus, the Petitioners have met their burden to come forward with a prima facie case with respect to their discharges concerning the comparative conduct of some of the white employees used as comparators by the Petitioners.
The Respondent established that it investigated the charges brought against the Petitioners and showed that a review committee composed of four white supervisors and one black supervisor and managers from the Distribution Center reviewed all of the evidence available to it and unanimously concluded that the Petitioners had willfully taken and destroyed the property of other employees without their consent. Moreover, the review committee determined that the evidence available to them showed that the Petitioners had taken and effectively destroyed the food belonging to employees of the Embroidery Department and taunted those employees, exhibiting a disregard for their feelings and a lack of remorse or apology for their conduct. This was an aggravating factor considered by the review committee in terms of its concern for the morale of their fellow employees and the maintenance of peace and good relationships in the work place, as shown by the above Findings of Fact. By producing this evidence, giving rise to the above Findings of Fact, concerning the manner in which the Respondent review committee considered the matter and its reasons for its employment action, the Respondent has articulated a legitimate, nondiscriminatory reason for its decision to discharge the Petitioners. Therefore, in order to prevail in this case on the discharge question, the Petitioners' burden must be proven, by a preponderance of the evidence, that the Respondent's articulated reasons for discharging the Petitioners are pretextual. The Petitioners have failed to meet that burden.
The Petitioners attempted to establish that the Respondent's articulated reason for discharge was pretextual through presenting statistical evidence prepared and presented by an expert witness. The Petitioners, however, failed to establish that an analysis by the expert consisted of, or was based upon, properly-gathered, formulated and analyzed statistical proof. That evidence was, therefore, not admitted into the record. In addition, the Petitioners attempted to show that the Respondent had misled the Commission by submitting incomplete or false employment record reports, which it maintained, even in the de novo context of this case, was relevant on the issue of the Respondent's credibility. In response to this effort to discredit the testimony of Respondent's witnesses and documentary evidence, the Respondent showed that it had omitted one document out of a total of 61 items which should have been reported to the Commission regarding notice of interest jobs. Additionally, testimony showed that through apparent clerical error, the Respondent omitted the name of one former black employee from a roster of discharged employees.
This evidence taken as a whole did not establish that the Respondents were attempting to mislead the Commission and, through use of such evidence, the trier of fact in this proceeding.
Additionally, the Petitioners presented no evidence of racial comments, jokes and the like made by the persons responsible for the decision to discharge the Petitioners. The Petitioners, instead, attempted to show, through comparative employee discipline evidence, that the Respondent's asserted reasons are unworthy of credence. When this evidence is viewed in context with the Respondent's responsive evidence to the attempt to show pretext, however, it is clear that the Petitioners, as shown by the above Findings of Fact, have not proven by a preponderance of the evidence that the articulated (and evidentially established) reasons for discharging the Petitioners are pretextual.
The evidence regarding treatment of employees by the Respondent after a violation of company rules indicates, as found above, that before discharging any employee, the Respondent consistently utilizes an informal review process, referred to as the review committee, to evaluate whether facts and circumstances involved in a specific situation support a decision to discharge the employee in question or whether some lesser disciplinary action is more appropriate. All of the evidence produced by both Petitioners and Respondent showed that the Respondents have not always applied the same classification to offenses, which on the surface appear to be equivalent, but the preponderance of the evidence does not indicate that this variation in classification has resulted in discriminatorily-different treatment of the Petitioners or other black employees. Instead, the evidence shows that because of factual differences between the incidents, black and white employees have been issued major reprimands rather than being discharged for horseplay, insubordination, and actions which could be classified as the destruction of property. Likewise, other employees of both races have been discharged for similar offenses.
Based upon the above Findings of Fact and analysis of the discharge claims, the evidence establishes that the Petitioners have not satisfied their burden of proving by a preponderance of the evidence that the Respondent discriminated against them on the basis of their race when they were discharged in November of 1991; and, therefore, the discharge claims should be dismissed.
Promotion Claims
The evidence establishes that all of the promotion claims by the Petitioners are based upon promotion decisions made or communicated more than
180 days before the Petitioners filed their claims of discrimination with the Commission. Thus, those claims are untimely and due to be dismissed unless it is proven that the claims are part of a continuing violation.
The Petitioners have previously acknowledged, through oral argument and memoranda, that the only branch of the doctrine of continuing violation they assert to be applicable in this case is the "serial violation" aspect of that doctrine, shown by the Petitioners' response to the motion for partial administrative dismissal, etc. filed on June 11, 1993 and the Petitioners' posthearing memorandum. In order for the promotion claims to be actionable under the doctrine of serial, continuing violation, the Petitioners must prove that their timely discharge claims are so closely related to their discreet, isolated and completed promotion decisions that the trier of fact must consider the two classes of employment decisions to have essentially arisen out of a common, continuing factual situation. Barrett v. Florida Power & Light Co., 42
F.E.P. Cases 1816, 1817 (S.D. Fla. 1987). The mere fact that a petitioner's employment has continued, however, is not enough to extend the limitations. United Airlines v. Evans, 431 U.S. 553, 14 F.E.P. Cases 1510, 1512 (1977).
In Delaware State College v. Ricks, 449 U.S. 250, 24 F.E.P. Cases 827 (1980), the United States Supreme Court held that the limitation period for asserting a claim of discrimination begins to run when an employee knew or reasonably should have known of adverse employment decisions affecting him.
The Petitioners did not offer any evidence that they did not know when any of the job vacancies about which they have asserted claims were filled, nor did they prove that they should not have reasonably known that the promotions had been awarded to other employees when they were awarded. Instead, the Petitioners testified that they knew when persons were promoted to lead jobs simply by seeing them perform the job duties of a Lead Person. Moreover, with respect to the notice of interest jobs in which the Petitioners expressed an interest, the evidence shows that the Respondent's practice is to clearly state on the notice of a job vacancy the period for which the job will remain posted. Thus, even if the Petitioners did not know, by observation, exactly when notice of interest jobs were filled, they knew from the notices that they signed, to express their interest in the jobs, approximately when they could begin checking with the Respondent to determine whether the job had been filled or whether they were still being considered for the job. Therefore, the Petitioners cannot credibly claim that they should not reasonably have known when a job they sought was awarded to another person.
Therefore, under the Delaware State College v. Ricks framework for analyzing continuing violations in the tenure/promotion decision setting, the Petitioners have failed to establish that their promotions claims are part of a continuing violation. Thus, the Petitioners' promotions claims are due to be dismissed as untimely.
Even if the claims are considered timely for purposes of argument, their claims are not established. In order to establish a prima facie case with regard to the promotion claims, the Petitioners must prove that they are members of a protected class and that they were qualified for the jobs which they sought. They must prove that they were not promoted despite those qualifications and that the Respondent promoted individuals with equal or lesser qualifications who were not in the protected class. See, Rollins v. State of Florida Department of Law Enforcement, 868 F.2d 397, 399 (11th Cir. 1989); Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988); and Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 n.7 (11th Cir. 1983).
If the trier of fact concludes that the Petitioners have established a prima facie case with respect to their promotion claims and the Respondent articulates a legitimate, nondiscriminatory reason for its decisions, the Petitioners must carry forward the same burden of proof discussed above concerning the discharge claims in order to prevail in the promotion claims.
There is no question that the Petitioners have shown that they are members of a protected class; and because the Respondent does not use a formal application procedure for Lead Person promotions, the Petitioners were not required to show that they actually sought the Lead Person jobs they have identified as arguably available to them. However, they must show that they were qualified for those jobs and that the Respondent promoted white employees who possessed equal or lesser qualifications than did they.
The Petitioners have not demonstrated that they possess the same qualifications which the Respondent requires for its Lead Person jobs. The only qualifications for the Lead Person jobs which the Petitioners demonstrated they possessed are that they know how to perform acceptably as lift operators and that they know how to perform the rudimentary computer operations which all Pack and Hold Department employees are able to and do perform on a regular basis and that they have been employed by the Respondent for a longer period of time than some of the white employees who were promoted to Lead Person positions. The Petitioners did not, however, prove that the Respondent promotes persons into lead jobs on the basis of seniority. Moreover, the Petitioners failed to prove that they possess the leadership, communication, and interpersonal skills that the Respondent requires of its Lead Persons. The evidence shows, instead, that the Petitioners willingly and competently performed their jobs as lift operators but were not routinely willing to take on added responsibilities and assignments. Even if the Petitioners were deemed to possess the minimum qualifications for the Lead Person job, they did not show that they were equally or more qualified for the lead jobs than were employees Blankenship, Capps, Pumphrey or Wilkinson.
Petitioner Gray asserted that he had been passed over for the Lead Person jobs given to Blankenship and Capps. The Respondent produced evidence showing that Blankenship and Capps had demonstrated through their work performance with the Respondent that they possessed more leadership and communication skills than Petitioner Gray did. Additionally, Mr. Blankenship, unlike Petitioner Gray, possessed experience in both the Pack and Hold Department and the Shipping Department, which is the department into which Mr. Blankenship was promoted as Lead Person. Likewise, the Respondent produced evidence that, in conjunction with his greater leadership skills when compared to Petitioner Gray, that it had considered Mr. Capps' extra initiative in routinely taking on added responsibility over and beyond the routine requirements of his position, which the Respondent felt made him more qualified for the Lead Person position than was Petitioner Gray in light of the extra initiative and leadership demonstrated by Mr. Capps. In contrast, Petitioner Gray did not offer evidence that he possessed leadership or communication skills of the level required by the Respondent nor that he was routinely willing to take on more work responsibilities. Indeed, Petitioner Gray admitted that he preferred an easier job to one that requires more work even it pays more money. Although that testimony by Petitioner Gray applied to the order clerk promotional position, that demonstration of a lack of initiative and leadership of the same order as demonstrated by Mr. Capps is in derogation of Petitioner Gray's claim that he is equally or more qualified than Blankenship or Capps to take on the added responsibilities of a Lead Person job.
Petitioner White maintains that he was denied promotion to lead jobs awarded to Blankenship, Pumphrey and Wilkinson. Like Petitioner Gray, however, Petitioner White failed to demonstrate that he possesses the minimum leadership, communications, and interpersonal skills and abilities that the Respondent deemed to be present in the work performance records of Blankenship, Pumphrey and Wilkinson. Moreover, Petitioner White did not offer any evidence that he has any prior managerial experience, versus Mr. Pumphrey's 12 years of management experience, which was considered by the Respondent in making its decision. Notwithstanding this analysis, if it be assumed arguendo that a prima facie case has been established with respect to the Petitioners' promotion claims, the Respondent, by setting forth the above-found reasons whereby it found Blankenship, Pumphrey and Wilkinson to be more qualified, has articulated a legitimate, nondiscriminatory reason for its promotion decisions. Thus, in
order to prevail, the Petitioners must come forward with evidence to demonstrate that those reasons are pretextual and that in reality, the decisions were racially motivated.
Concerning the notice of interest jobs category, it might be argued that the Petitioners both sought the order control clerk position ultimately filled by Ms. Forsyth. However, whether Petitioner White believed that being passed over for that job was an act of discrimination is doubtful. Petitioner White testified that he did not remember signing a notice of interest form for the order control clerk job. Such a lack of memory about an incident that, in part, allegedly moved him to file a charge of discrimination tends to undermine the credibility of that claim, at least with respect to that position. Moreover, neither Petitioner Gray or Petitioner White offered proof that they possessed the minimum qualifications to perform that job or any exceptional qualifications for the job. In contrast, the evidence showed, as found above, that Ms. Forsyth possessed not only on-the-job experience with computers but that she had taken college-level education and training courses in computers. Because the Respondent considered computer skills to be a very important qualification for the order control clerk's job, the Petitioners were not able to show that they were equally or more qualified for that job than Ms. Forsyth and thus have failed to establish a prima facie case with respect to the order control clerk's job.
Even if a prima facie case were assumed for the Petitioners' claims with respect to that position, by its articulation of the fact that Ms. Forsyth was selected because she possessed great communication, organizational, and computer skills, the Respondent has articulated a legitimate, nondiscriminatory reason for her promotion. Thus, in order to prevail, the Petitioners must show that the Respondent's stated reasons for promoting Ms. Forsyth is pretextual.
In addition to the order control clerk's job, Petitioner Gray asserted that he sought the quality auditor job in the Packing Department which was ultimately filled by white employee Scott Partin. As with the order control clerk job, Petitioner Gray failed to show that he possessed the minimum qualifications for it. However, even if the minimum qualifications were presumed, the facts show that the Mr. Partin was more qualified for the job because of his work experience. Specifically, Mr. Partin had performed the very work which he would be required to inspect in his new job as quality auditor.
By comparison, Petitioner Gray testified that he had never worked in the Packing Department. Thus, Petitioner Gray cannot legitimately claim to be equally qualified for the quality auditor job as Mr. Partin.
Notwithstanding this analysis, if a prima facie case of discrimination is assumed with respect to Petitioner Gray's claim for the quality auditor job, the Respondent has, by setting forth the above-found reasons which found Mr. Partin to be more qualified than Petitioner Gray, a legitimate, articulated nondiscriminatory reason for its promotion decision. Thus, to prevail, the Petitioners must show that these reasons are pretextual.
Concerning the truck driver jobs, as with the Lead Person jobs, there is no evidence that the Respondent uses a formal system for announcing vacancies for truck driver positions. Thus, Petitioner Gray was not required to show that he actually sought the jobs awarded to Mr. Evans or Mr. Smothers. He must, however, prove that the other elements of a prima facie case are present in order to prevail. The evidence does not support the claim. Petitioner Gray testified that he was trained in the military to drive tractor-trailer trucks. However, he produced no evidence to support that contention. Notwithstanding
that lack of proof, the Respondent showed that the manager of the Distribution Center, Mr. Morris, who is white and a decision maker, asked Petitioner Gray, on his volition, if he was interested in driving trucks for the Respondent after Mr. Morris learned of his military truck-driving experience. After Petitioner Gray expressed an interest in truck driving, Mr. Morris encouraged him to do so; and the Respondent issued him a learner's permit and allowed him to drive tractor-trailer equipment with a licensed driver on board to instruct and evaluate his ability. The evidence shows, as found above, that Petitioner Gray failed to prove that he was trained and capable of driving a tractor-trailer type truck nor was evidence adduced showing he was properly licensed to do so.
Therefore, the evidence adduced and the facts found based thereon do not support a finding of a prima facie case with respect to Petitioner Gray's truck driving claim. In that connection, the Petitioners did not adduce evidence that Mr.
Evans and Mr. Smothers were not qualified in terms of licensure, training and experience to perform those jobs.
Petitioner Gray's claim must fail because he failed to prove that he was actually qualified to drive a tractor-trailer truck. In fact, Petitioner Gray's own testimony shows that he has never become licensed to drive a tractor- trailer truck. Moreover, he did not prove that he was equally or more qualified than Mr. Evans or Mr. Smothers for that job. In fact, Petitioner Gray testified that he knows nothing about the qualifications of either Mr. Evans or Mr. Smothers for the truck driving job at the time they were awarded those jobs; and the Petitioners offered no evidence with regard to their past or present qualifications. If a prima facie case had been established for Petitioner Gray's truck driver job claims, he would have to establish that the articulated reason for finding Mr. Evans and Mr. Smothers more qualified for the positions was pretextual.
The Petitioners, however, offered no admissible, statistical evidence showing pretext. In contrast, the Respondent submitted sufficient evidence culminating in the above Findings of Fact which explains the few discrepancies between the reports it submitted to the Commission and the information revealed during the discovery stage of this proceeding and placed into evidence regarding discharges and job promotions. The Petitioners' comparative evidence, as found above, was not shown adequate to prove by a preponderance of the evidence that the Respondent's stated reasons for not promoting the Petitioners was pretextual. The only other evidence going to the question of pretext, which the Petitioners produced, is testimony concerning the telling of racial jokes and making racial comments in the work place. This evidence was offered largely by witness Michael Capps, who is accorded scant credibility for the reasons mentioned in the above Findings of Fact and was directly refuted by testimony of Mr. Gainer, Mr. Ramos, and Mrs. Moses Edwards. The Petitioners did not offer proof supportive of a finding that the testimony of these individuals is not worthy of credence and, therefore, failed to establish the Respondent's articulated and proven reasons for promoting others ahead of the Petitioners in the above-mentioned promotional positions were a pretext for discrimination. Moreover, as found above, if the telling of racial jokes in the work place occurred, it was not shown to be with the knowledge of, or the condonation or negligent allowance, of supervisory personnel. It was not demonstrated that any decision-makers involved in the facts of this proceeding concerning the Petitioners made such comments or jokes nor were aware of them. It, thus, has not been shown that the articulated reason for promoting others ahead of the Petitioners in the subject jobs of order control clerk, quality auditor, lead person, and truck driver were pretextual reasons for what amounted to racial discrimination.
Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor, demeanor and credibility of the witnesses, as well as the pleadings and arguments of the parties, it is
RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief in their entirety.
DONE AND ENTERED this 9th day of June, 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 9th day of June, 1994.
APPENDIX TO RECOMMENDED ORDER
Petitioners' Proposed Findings of Fact 1-30. Accepted.
31-32. Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
33-35. Accepted.
36. Accepted, but only in the context of the Hearing Officer's additional findings of fact on this subject matter.
37-39. Accepted.
40. Accepted, but not material. Mr. George learned of the incident directly from Mrs. Moses Edwards.
41-46. Accepted, but not material. It cannot be found that Mr. Cutts lied under oath, as opposed to being merely mistaken or the victim of a faulty memory nor can it be said that Mr. Blount lied under oath, instead of having been mistaken and that he had a faulty memory. The relevant and material findings of fact made by the Hearing Officer on this subject matter concerning the incident and the investigation are not based upon Mr. Blount's or Mr. Cutts' testimony in any event.
47. Accepted.
48-49. Accepted, although the evidence conflicts between Petitioner Gray's and Mr. Horton's testimony concerning whether Petitioner Gray gave actual names of other employees to Mr. Horton. In any event, neither proposed finding is materially dispositive of relevant issues.
50-51. Accepted.
Accepted, but not dispositive of material issues.
Accepted, but not materially dispositive of relevant issues, not itself material, and subordinate to the Hearing Officer's findings of fact on the manner in which Mr. Howard's investigation was conducted, including the determination concerning Mr. Barnes and Mr. Rhymes.
Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as not entirely in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not materially dispositive of relevant issues. 57-59. Accepted.
60. Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
61-62. Accepted, as modified by the Hearing Officer's findings of fact on this subject matter.
Rejected, as not in accordance with the preponderant weight of the evidence, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as a discussion of evidence rather than a proposed finding of fact.
Accepted, but not itself material. The Hearing Officer's findings of fact on this subject matter do not depend on Mr. Cutts' recollection.
Rejected, as to its purported material import. The Hearing Officer's findings of fact on this subject matter reflect the preponderant weight of the credible evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter concerning the purported material import of this proposed finding. The Hearing Officer's findings of fact depict the thrust and context of Mr. Spivey's "regret" concerning the incident, as demonstrated by Mr. Spivey's testimony.
67-68. Accepted.
69-70. Accepted, but not as to its purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter.
70-71. Accepted, in part, but only as modified by the Hearing Officer's findings of fact on this subject matter which are based upon the preponderant, credible evidence and testimony. It was not shown that the decision was entirely subjective. Destruction of property was not found by the Respondent to be willful under the circumstances.
72. Rejected, as not in accordance with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
73-75. Accepted, except as to the last sentence of proposed finding of fact number 75, which is not entirely in accordance with the preponderant weight of the evidence, and subordinate to the Hearing Officer's findings of fact on this subject matter.
76-93. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
94-96. Accepted, as modified by the Hearing Officer's findings of fact on this subject matter.
97. Rejected, as not being materially dispositive of the relevant issues and as not entirely in accordance with the preponderant testimony and evidence. This proposed finding does not reflect the entirety of the conversation between Petitioner Gray and Mr. Cutts. Mr. Cutts also promised to put Petitioner Gray on the list for future lead person considerations for promotion.
98-120. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the credible testimony and evidence.
121-126. Rejected, as not entirely consonant with the preponderant weight of the credible testimony and evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. The question of the employment and promotional records furnished to the Commission is not relevant in the de novo context of this proceeding, except that the subject was allowed to be addressed by the Petitioners and the Respondent on the question of any reflection it might have on the credibility of the Respondent's position and evidence in this case, if it could be shown by the Petitioners that the Respondent somehow misled or misrepresented employment data to the Commission, as that might reflect on the credibility of such evidence in this case.
Findings have been made resolving the credibility issue in favor of the Respondent in the Hearing Officer's Recommended Order, however.
127-136. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as also not entirely supported by preponderant, credible evidence of record, and, to some extent, as immaterial to resolution of relevant issues pending before the Hearing Officer.
137-141. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter concerning the order control clerk position and the rationale for promoting Ms. Forsyth as opposed to Petitioner Gray.
142-147. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as not entirely supported by preponderant, credible evidence of record, and, to some extent, an inaccurate characterization of the evidence. The Respondent did not offer, nor did the Hearing Officer consider, Petitioner Gray's driving record as the rationale for not promoting Petitioner Gray to the truck driver position at issue. The driving record of Petitioner Gray was only offered on the basis of testing credibility and for impeachment purposes concerning Petitioner Gray's testimony at hearing. The Hearing Officer has made findings of fact based upon the preponderant, credible evidence of record, after judging credibility of the pertinent witnesses and evidence and neither Petitioner Gray's driving record nor Mr. Edenfield's driving record is relevant or was considered on the question involving the truck driver promotion, the rationale for which is delineated in the Hearing Officer's findings of fact on this subject matter, which are hereby adhered to.
148-155. Rejected, as subordinate to the Hearing Officer's findings of fact made after judging the candor and credibility of the witnesses involved on the issues concerning direct evidence of discriminatory intent alluded to by these proposed findings of fact, and as not entirely in accord with the preponderant credible evidence and testimony of record.
Respondent's Proposed Findings of Fact 1-15. Accepted.
16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
20-22. Accepted.
23. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
24-29. Accepted.
30. Accepted, except for the last sentence, which is rejected as immaterial.
31-33. Accepted.
Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
36-42. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ.
43-47. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ.
48-63. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ.
COPIES FURNISHED:
Paul H. Amundsen, Esq. AMUNDSEN AND MOORE
909 East Park Avenue Tallahassee, FL 32301
Mary C. O'Rourke, Esq.
325 West College Avenue Tallahassee, FL 32301-1499
Chris Mitchell, Esq. Michael D. Giles, Esq. CONSTANGY, BROOKS AND SMITH
1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203-2602
Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240
325 John Knox Road Tallahassee, FL 32303-4149
Dana Baird, Esq.
General Counsel
Human Relations Commission Building F, Suite 240
325 John Knox Road 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.
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DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
LARRY E. GRAY and NOT FINAL UNTIL TIME EXPIRES TO
FREDERICK WHITE, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Appellant,
CASE NO. 95-1962
vs. DOAH CASE NOS. 93-316
93-317
RUSSELL CORPORATION,
Appellee.
/ Opinion filed October 15, 1996.
An appeal from a final order of the Florida Commission on Human Relations.
Kent Spriggs of Spriggs and Johnson and Paul H. Amundsen of Amundsen and Modre, Tallahassee, for Appellants.
Chris Mitchell and Michael D. Giles of Constangy, Brooks & Smith, Birmingham, Alabama, for Appellee.
SMITH, Senior Judge.
Appellants, Larry E. Gray and Frederick White, appeal from a final order of the Commission on Human Relations adopting the hearing officer's recommended order and ruling that appellee Russell Corporation (Russell) did not discriminate against appellants on account of their race when it discharged them from employment. Finding no error, we affirm.
Appellants have framed several issues on appeal so as to present questions of law. However, we find that disposition of the Issues on appeal turns primarily upon our review of factual issues determined by the hearing officer below. After careful review, we conclude that the hearing officer's finding that there was no discriminatory intent in the discharge of appellants is supported by competent, substantial evidence, and was not based on erroneous applications of the law.
Appellants, Gary and White, both black males, were employed by Russell from March 198 and August 1987, respectively. At the time of their discharge, both held positions as lift truck operators, the highest paying hourly rate job in the plant except for the lead person position. Neither had prior disciplinary problems with Russell. They were both discharged from their employment in November 1991 after an incident in which the two disrupted a company-approved
luncheon on company premises being hosted by personnel of the company's Embroidery Department. Appellants did not work in the Embroidery Department and were not invited to participate in the luncheon. The evidence established, as found by the hearing officer, that appellants entered the room where the luncheon was being set up, and that they took and consumed food prepared for others after being denied permission to do so by one of the employees who was helping to set up the food for the luncheon. Complaints were brought to the attention of managerial personnel, and a report was submitted to Russell's review committee which is composed of five supervisors and department heads, one of whom is black. The review committee concluded that the incident amounted to appellants' having "willfully destroyed the property of others," in violation of company rule, and therefore discharged appellants on that basis. Appellants filed charges of discrimination with the Florida Commission on Human Relations, alleging that they had been denied promotions and had been discharged on account of their race in violation of Florida Statutes, and specifically section 760.10, et seq., Florida's Human Rights Act of 1977.
This may be characterized as a "disparate treatment" case and thus subject to the burden of proof as explained by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 39 L. Ed. 2d 668 (1973); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981), and subsequent cases. We have previously articulated at length the burden of proof in discrimination cases under the Florida Act, and no useful purpose would be served by reiteration of those requirements. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991). Because the Act is patterned after Title VII of the Civil Rights Act of 1964, 42
U.S.C. s2000e, et seq., federal case law interpreting Title VII is applicable. Id. at 1209.
We initially observe that there was no direct evidence of a discriminatory motive on the part of Russell in discharging appellants. The hearing officer found, however, that appellants had established a prima facie case of discrimination by evidence regarding similarly-situated white employees who purportedly violated the same or similar rules having to to with damage to or destruction of property of the company or others, but who were not discharged. Although the hearing officer questioned the similarity of the comparison" evidence, he found, nevertheless, that some of this evidence was sufficiently similar so that an ordinary person might "reasonably infer" discrimination from the facts shown, if those facts were unrebutted. See Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443 (11th Cir.), cert. den'd, 474 U.S.
1005,106 S. Ct. 525,8 L.Ed. 2d 457 (1985). The hearing officer then concluded that evidence presented by Russell concerning the facts considered by the review committee, and the reasons for its action in the instant case, provided a legitimate, nondiscriminatory reason for its decision to discharge appellants.
Accordingly, the hearing officer found the burden was upon appellants to prove, by a preponderance of the evidence, that Russell's articulated reasons for discharging appellants were pretextual, and that they had failed to meet that burden. 1/
The evidence concerning comparable incidents of discipline or discharge of both white and black employees was of critical importance in the case, and we find that the hearing officer in his order has carefully summarized and evaluated the evidence pertaining to each incident.. Numerous federal decisions
have dealt with the requirements of comparability" of evidence in the context of discrimination cases, as outlined by the federal court in Williams v. Publix Warehouse, 9 Fla. L. Weekly F. D14 (M.D. Fla. April 6, 1995):
Thus, to be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment for them ford. Mazella v. RCA Global Communications, Inc., 642 F.Supp. 1531
(S.D.N.Y. 1986), aff'd., 814 F.2d 653 (2d Cir.
1987); Lanear v. Safeway Grocery, 843 F.2d 298 (8th Cir. 1988)(plaintiff must prove that he and white employee were similarly situated in all respects and that the other employee's acts were of comparable seriousness to his own); Cox v. Electronic Data Systems Corp., 751 F.Supp. 680 (E.D. Mich. 1990)
[Quoting Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992) .] Thus, a Plaintiff must show "that a person of another race would not also have been discharged under similar circumstances." Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir. 1992)(quoting McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 273, 281-84
(1976))
Id. at D16.
In the case before us, the hearing officer found that facts available to the review committee showed that appellants had taken food belonging to employees of the Embroidery Department, and further, that they had "taunted those employees, exhibiting a disregard for their feelings and a lack of remorse or apology for their conduct." This, according to the hearing officer, "was an aggravating factor considered by the review committee in terms of its concern for the morale of their fellow employees, and the maintenance of peace and good relationships in the work place. "
Appellant White argues that a distinction should be made between his conduct and that of appellant Gray, in that White exhibited none of the "taunting, mocking attitude" toward the other employees displayed by Gray. White's actions were apparently less noticeably egregious than the actions of Gray. Nevertheless, he knowingly participated in the incident with Gray, consuming food himself, and offering a piece of chicken to a fellow worker who was also not a member of the Embroidery Department. Both White and Gray failed to show any remorse or attempt to apologize for their actions, and White nodded in assent when Gray, upon being questioned, denied having eaten the food. White later, on two occasions, admitted having eaten the food without permission.
In his order the hearing officer, referring to the firings as a "seemingly harsh remedy," noted that it was specifically the absence of remorse or apology on the part of appellants and their misrepresentation of their actions that caused the review committee, including the black member, to unanimously vote to
discharge appellants. The hearing officer found that the committee "was sensitive to a perceived need to take strong disciplinary action in order to preserve employee morale of those victimized by the incident and other employees who knew of it, and to show the committee's sensitivity to the necessity that coworkers respect each other's property and feelings."
It is apparent from our review that none of the comparative evidence involved incidents of willful destruction of the property of other employees, nor, more significantly, did any of these instances deal with disrespectful or intimidating conduct such as that engaged in by appellants. We reject appellants' contention that by requiring them to provide evidence of instances in which white employees were not discharged under similar circumstances, the hearing officer required them to "prove too much." The determination of comparable seriousness is a factual issue within the province of the hearing officer, and it is not our function to second-guess his conclusions as to the comparability and seriousness of the conduct involved in each instance. Heifetz
v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco,
475 So.2d 1277 (Fla. 1st DCA 1985)(factual issues susceptible to ordinary methods of proof and not infused with policy considerations are the prerogative of hearing officer, and ultimate findings of fact supported by competent, substantial evidence may not be changed by reviewing agency or appeals court, even if reviewing tribunal would have ruled otherwise had it been trier of fact)
. Further, the question of intentional discrimination is a "pure question of fact" and, as such, the fact-finder's determination will not be set aside unless clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, n. 16, 102
S. Ct. 1781, 72 L. Ed. 2d 66 (1982)
Appellants also urge that the hearing officer erred in excluding testimony by appellants' expert witness. They contend that by rejecting the expert testimony, appellants were deprived of the opportunity to establish a "pattern and practice of discrimination," which imposes a higher burden upon the employer. As stated by the court in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.), cert. den'd, 479 U.S. 883, 107 S. Ct. 274, 93 L. Ed. 2d
250 (1986):
In other words, once a pattern and practice of discrimination is established, a rebuttable presumption that plaintiff was discriminated against because of her sex and is entitled to recovery obtains. The employer may overcome this presumption only with clear and convincing evidence that job decisions made when the discriminatory policy was in force were not made in pursuit of that policy. Id. at 1559.
Appellants' expert was accepted by the hearing officer as an expert witness in the field of Labor Economics. However, during his testimony serious questions arose concerning the reliability and accuracy of the data upon which his proffered opinions were based. In his recommended order the hearing officer found that appellants had failed to establish that the statistical evidence and analysis by their expert witness consisted of, or was based upon, "properly- gathered, formulated and analyzed statistical proof." Consequently, at the conclusion of the expert's testimony the hearing officer ruled that his testimony and written report were inadmissible.
Although the hearing officer devoted little space in his recommended order to the expert witness issue, the record itself clearly reveals the basis for his decision to exclude the expert evidence. The expert was produced, according to appellants' counsel, for the purpose of testifying only regarding the likelihood of Russell's black employee discharge decisions occurring absent racial bias, based upon statistical computations involving the number of black and white employee discharges in relation to the racial composition of Russell's work force. The witness was accepted by the hearing officer as an expert in the area of Labor Economics as that relates to making calculations and analyses from statistical data and rendering opinions as to what such calculations and analyses show regarding Russell's hiring, promotion and termination practices.
2/
During the discovery process below, appellants' counsel received copies of a wide range of documents from Russell, including some mandated by federal law, disclosing information as to the size and racial composition of Russell's work force, termination lists and logs, and reports of disciplinary actions for the three-year period preceding appellants' discharges, and for an additional year ending September 1992. From these documents, which were placed in evidence before the hearing officer, appellants' law firm prepared a computer data base which was then reduced to summary form by a paralegal employed by the law firm, who separated, classified and categorized the reprimand and discharge information from the computer data base without instruction or direction from the expert witness. Testimony at the final hearing revealed that the expert's written report and testimony were based entirely upon his statistical analysis of the information contained in the summary. The witness never' examined or even saw the underlying data from which the summary was prepared, was unaware of the manner in which the information had been compiled and categorized, and was unaware that certain essential information regarding disciplinary reprimands had been excluded from the summary. The person or persons who compiled the data and prepared the summary were not called as witnesses.
In particular, the summary excluded all disciplinary actions and discharges of probationary or orientation employees. Also excluded were all reprimands for tardiness or absenteeism. The expert believed that he made the decision to exclude probationary employees based upon the manner in which those employees were "characterized" to him by appellants' counsel. From this information he made certain assumptions concerning the manner in which Russell subjected them to disciplinary actions, concluding that they were treated differently than non- probationary employees. This assumed difference, in his opinion, justified eliminating them from his study. He made no investigation of his own to determine whether the assumptions upon which he based the exclusion decision had any basis in fact.
The expert testified that his analysis of the termination statistics depended in part upon certain further assumptions concerning the productivity of black and white workers as the basis for Russell's discharge decisions. He stated that reprimands for tardiness and absenteeism would relate to productivity, and that consideration of these reprimands would be critical to his conclusions concerning disciplinary actions for work-related reasons. His testimony indicated that reprimands related to performance or productivity were included in his study and analysis. However, it was then pointed out to him that his written report indicated these reprimands had been excluded. He stated that he was unaware that this exclusion had been made in the summary furnished to him, but agreed that inclusion of these reprimands would be essential to the making of a valid study. We find that Russell's counsel objected throughout the expert's testimony because of these and other omissions and deficiencies.
Appellants' assertion that Russell's only concern giving rise to an objection based on section 90.704, Florida Statutes, was the count of how many white and black employees were discharged during the time frames at issue appears incorrect.
After careful examination of the testimony given by the expert witness, both on direct examination and during his protracted cross-examination, we cannot say that the hearing officer abused his discretion in rejecting it in its entirety. The hearing officer recognized the rule, as codified in the Florida Evidence Code, that an expert may rely upon data or information from other sources, and that such data and information itself need not be admissible in evidence, provided "the facts and data are of a type reasonably relied upon by experts in the subject to support the opinion expressed." s 90.704, Florida Statutes. The hearing officer ruled that the standard for admissibility had not been met by appellants' evidence.
The expert witness admitted that he had relied upon data compiled and categorized by a paralegal of appellants' law firm; that he had given no instructions as to how to compile the data, what separations or categorizations should be made and the reasons for them; and that he had not reviewed the underlying records or documents from which the information supplied to him had been compiled. Upon direct questioning by the hearing officer, the witness stated that he really "couldn't confirm, one way or another," whether experts in his field customarily relied upon data assembled and provided to them under such circumstances as presented in this case. 3/
The hearing officer concluded that the expert's source of data or information upon which he based his opinions was not that commonly relied upon by an expert practicing in the field of Labor Economics. He also pointed out that the obvious omission from the reprimands study of critical data would furnish an additional basis for exclusion of the expert's written report, Petitioners' Exhibit 35. With respect to the testimony regarding terminations, the hearing officer observed that even if he found it admissible, despite its failure to meet the standard for admissibility under section 90.704, it would have "scant probative value."
The appellate courts in this state have long followed the rule that the acceptance or rejection of expert testimony is a matter within the sound discretion of the lower tribunal, and such decision will not be overturned on appeal absent a showing of abuse of discretion. See Behm v. Division of Administration, State Department of Transportation, 292 So.2d 437, 441 (Fla. 4th DCA 1974), approved, 336 So.2d 579 (Fla. 1976)(trier of fact may accept or reject expert opinion evidence in its discretion); Husky Industries, Inc. v.
Black, 434 So.2d 988 (Fla. 4th DCA 1983)(opinions and inferences of expert are inadmissible unless underlying facts or data form sufficient basis for expert's opinion and are themselves relevant); Gulley v. Pierce, 625 So.2d 45, 50 (Fla. 1st DCA 1993), rev. denied, 637 So.2d 236 (Fla. 1994)(determination that a witness is qualified as an expert in a particular field does not necessarily mean that the specific expert opinion sought to be elicited should be admitted). We find no abuse of discretion in the hearing officer's exclusion of the expert's testimony and written report.
Appellants place a great deal of emphasis on the issue of statistical evidence in this case. It is undoubtedly true that statistics "play an important and often controversial role" in employment discrimination cases. Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 661 (5th Cir. 1983). "Where gross statistical disparities can be shown, they alone may in a proper case
constitute prima facie proof of a pattern or practice of discrimination." Hazlewood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 2741,
53 L. Ed. 2d 768 (1977), citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S. Ct. 1843, 1856, 52 L. Ed. 2d 396 (1977). It is also true, as Judge Reavley wrote for the court in Capaci, supra, that "numerical data is not irrefutable and must be used properly." 711 F.2d at 661. To the same effect, in somewhat different language, the court in Teamsters, supra, had earlier stated:
We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. 97 S. Ct. at 1856-57.
With the foregoing principles in mind, we have considered appellants' contention that the statistical showing made by appellants could not properly be ignored by the hearing officer. Appellants cite Falcon v. General Telephone Co. of Southwest, 626 F.2d 369, 381 (5th Cir. 1980), rev'd on other grounds, 457
U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982), in which the court stated that
once the plaintiff has offered some evidence that is probative of disparity that may be statutorily significant, it is then the defendant's burden to come up with [more specific statistical evidence] to rebut the plaintiff's proof. [Emphasis added.]
Appellants also direct our attention to that part of the opinion in Capaci, supra, in which the court admonished:
The defendant must do more than raise theoretical objections to the data or statistical approach taken; instead, the defendant should demonstrate how the errors affect the results . . . particularly in cases where the plaintiff has demonstrated gross disparities in employer practices.
711 F.2d at 653-54. [Citations omitted.]
Appellants urge that because all the records necessary to establish the disparity in discharges of black employees was in evidence before the hearing officer, and because these discharge numbers were either conceded by opposing counsel, or could have been counted by the hearing officer, it was error for the hearing officer to fail to consider this evidence in determining whether Russell was guilty of unlawful discrimination. We have given some consideration to this argument.
During cross-examination of the expert, Russell's counsel indicated to the hearing officer that there had been a total of 94 discharges during the three- year period in question, and that of these, 50 were probationary employees, and
44 were non-probationary employees. At oral argument before this court, Russell's counsel indicated that as to the 44 non-probationary employees, the numbers utilized by appellant appeared to be correct. We may assume, therefore, that of the 44 discharged, 26 were white and 18 were black. According to one benchmark figure computed from data prepared by appellants' counsel and submitted to the expert witness, the percentage of black employees in Russell's
work force, excluding officials, managers, professionals and technicians, averaged 27 percent over the three-year period. Based on these figures, it appears that the percentage of black non-probationary employees discharged exceeds the percentage of blacks in Russell's work force. However, although as previously noted probationary employees were not included in the expert's analysis of discharges, both counsel agreed at oral argument that the benchmark, or work force number, utilized in appellants' calculations included both probationary and non-probationary employees. Appellants offered no analysis of discharges for probationary employees or other indication of what effect inclusion of the discharges might have on the numerical disparity shown to exist, using only the figures for non-probationary employees. Our own examination of the probationary discharge figures found in Respondent's Exhibit
8 (a tabulation of discharge data), reveals that of the 50 probationary employees discharged during the three-year period, 15 were black, and 35 were white. Thus, the percentage of black probationary discharges corresponds fairly closely to the percentage of blacks in Russell's work force.
We make these observations not for the purpose of making our own fact- finding determinations, but simply to point out the obvious: that a change in the manner in which the numerical and other data in the voluminous record before us is assembled, classified and analyzed could change the statistical result.
Here, it appears that inclusion of the probationary discharge figures would have tended to favor Russell. Whether the reasons given for exclusion of probationary employees from the numerical study were or were not persuasive was a matter within the province of the hearing officer. In any event, we conclude that without a more complete and accurate explanation and analysis of Russell's discharge and reprimand records, which is absent here, we have no alternative but to agree with the hearing officer's assessment that the proffered statistical evidence has "scant probative value."
We do not as a matter of law foreclose the possibility that a hearing officer, in a given case, might find upon his own examination of documents in the record, unaided by expert testimony, sufficient statistical basis for a conclusion as to the likelihood of discriminatory practices. We do not believe this to be such a case. We observe that not even appellants' expert was asked to provide an opinion as to racial bias based solely on the discharge numbers, without consideration of supporting data concerning disciplinary actions from which further conclusions might be drawn so as to eliminate other possible reasons for a higher discharge rate for blacks. For a court to infer that racial considerations are responsible for a statistically significant disparity, it should be established, among other things, that "race is the only evident variable separating the two groups." See Taylor v. Teletype Corporation, 648 F.2d 1129, 1133 (8th Cir.), cert. den'd, 454 U.S. 969, 102 S. Ct. 515, 70 L.
Ed. 2d 386 (1981) The evidence before the hearing officer clearly failed to satisfy this requirement.
To reverse the ruling of the hearing officer for his failure to make a finding of disciplinary practices based upon his own statistical analysis and conclusions, as urged by appellants, would require us to fault the hearing officer for his failure, in effect, to step into the shoes of an expert in the field of Labor Economics - a role for which so far as the record shows he possesses no qualifications - and to perform the calculations and analyses appellants' expert failed, or was unable, to do because he did not receive complete information. 4/ Significantly, we note that although the hearing officer reserved a final ruling on the admissibility of the expert evidence pending the production of further evidence or legal authority by appellants, the memorandum of law and fact filed below by appellants' counsel in support of
appellants' proposed findings of fact and conclusions of law contained no legal argument or citation of authority on the expert evidence issue, or with regard to statistical evidence. Furthermore, appellants' proposed findings of fact and conclusions of law submitted to the hearing officer contained no proposed findings of fact or conclusions of law relating to these issues. Further, although appellants filed exceptions to the recommended order, no argument or objection was made regarding the hearing officer's rejection of the expert testimony or his failure to make findings based on the statistical evidence.
See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993)(party waives right to challenge recommended order's findings of fact by failing to file exceptions to hearing officer's recommended order; and party cannot argue on appeal matters not properly excepted or challenged before the agency and thus not preserved for appellate review) . It would be improper, in our view, to find error under the circumstances presented here.
Appellants raise other issues concerning the hearing officer's findings as to the credibility of certain witnesses presented by appellee. We affirm on these issues without discussion.
Finding no reversible error, the order appealed is AFFIRMED. BARFIELD, C.J., and HAHN, J., CONCUR.
ENDNOTES
1/ In order for a reason to be proven to be a "pretext for discrimination" it must be shown both that the reason articulated was false, and that discrimination was the real reason for the discharge. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2752, 125 L. Ed. 2nd 407 (1993)
2/ Appellants made charges below of racial discrimination in promotions. However, the Commission's adverse ruling on those issues has not been presented for review on appeal.
3/ In his ruling at the final hearing the hearing officer acknowledged the expert witness' testimony that he had previously performed studies and analyses and had testified in two other cases for the same law firm using the same methods of compiling and categorizing information. The two prior cases were, in fact, the only employment discrimination cases in which the witness had appeared. The hearing officer also noted that much of the expertise of the witness, as the record shows, was in other areas of Labor Economics, rather than in litigation preparation or Forensic Economics.
4/ Nothing in our discussion of the data furnished by appellants' law firm to the expert witness should be interpreted as suggesting in the slightest respect any intent on the part of personnel of the firm to misrepresent the information contained in the records supplied by Russell; and nothing in the record below or in the arguments on appeal would raise any question concerning any such intent.
| Issue Date | Proceedings |
|---|---|
| Oct. 17, 1996 | First DCA Opinion filed 10/15/96 (Affirmed) filed. |
| May 30, 1995 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| May 30, 1995 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| Jun. 09, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 12-6-93. |
| Feb. 25, 1994 | Petitioners` Response to Respondent`s Proposed Final Order filed. |
| Feb. 14, 1994 | (Respondent) Proposed Final Order; Transcript (5 Vols) filed. |
| Feb. 11, 1994 | Petitioners' Memorandum of Law and Fact in Support of Petitioners' Proposed Findings of Fact and Conclusions of Law; Petitioners' Proposed Findings of Fact and Conclusions of Law filed. |
| Feb. 01, 1994 | Notice of Change of Counsel's Address and Telephone Numbers filed. (From Paul H. Amundsen) |
| Dec. 15, 1993 | Petitioner`s Exhibit list (ltr form) filed. |
| Dec. 06, 1993 | CASE STATUS: Hearing Held. |
| Dec. 01, 1993 | CC Letter to Michael R. Capps from Mary C. O`Rourke (re: being served w/a subpoena) filed. |
| Oct. 13, 1993 | (Petitioners) Notice of Filing w/Exhibit-A filed. |
| Sep. 21, 1993 | Order sent out. (Re: Respondent`s Motion to Amend Witness List Granted) |
| Sep. 17, 1993 | Ltr to S. Holmes from G. Green re: court report confirmation sent out. |
| Sep. 17, 1993 | Amended Notice of Hearing sent out. (hearing set for 12/6/93; 9:00am;Marianna) |
| Sep. 03, 1993 | Fourth Notice of Hearing sent out. (hearing set for 12/1/93; 8:30am;Marianna) |
| Sep. 02, 1993 | Ltr to S. Hollmes from G. Green re: court report confirmation sent out. |
| Aug. 06, 1993 | Letter to PMR from Mary C. O'Rourke (re: Terminations) filed. |
| Jul. 30, 1993 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Jul. 30, 1993 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Jul. 28, 1993 | Order sent out. (Rulings on Motions) |
| Jul. 28, 1993 | Order sent out. (Rulings on Motions) |
| Jul. 26, 1993 | (Petitioners) Notice of Filing Affidavit filed. |
| Jul. 26, 1993 | (Petitioners) Supplemental Authority filed. |
| Jul. 26, 1993 | Notice of Conference Call Hearing filed. (From Paul H. Amundsen) |
| Jul. 19, 1993 | Respondent`s Objection to Petitioners` Motion to Add a Witness to Petitioners` Witness List filed. |
| Jul. 16, 1993 | Respondent`s Objection to Petitioners` Motion to Add a Witness to Petitioners` Witness List filed. |
| Jul. 15, 1993 | Respondent`s Motion to Amend Its Witness List filed. |
| Jul. 15, 1993 | Petitioners` Response to Respondent`s Motion to Amend the Witness List filed. |
| Jul. 14, 1993 | Disclosure Pursuant to Directions of the Hearing Officer filed. |
| Jul. 12, 1993 | (Petitioners) Motion to Add a Witness to Petitioners' Witness List filed. |
| Jul. 06, 1993 | CC Letter to Paul H. Amundsen from Michael D. Giles (re: disclosing rebuttal witnesses) filed. |
| Jul. 02, 1993 | (Petitioner) Notice of Filing filed. |
| Jun. 30, 1993 | Ltr to Scarlott Holmes from GJG re: court report confirmation sent out. |
| Jun. 30, 1993 | Third Notice of Hearing sent out. (hearing set for 7/30/93; 9:30am; Marianna) |
| Jun. 22, 1993 | Letter to PMR from Paul H. Amundsen (re: resuming hearing) filed. |
| Jun. 15, 1993 | Order sent out. (Re: Rulings on Motions) |
| Jun. 14, 1993 | Response to Petitioner`s Motion to Compel Discovery and to Tax Costs filed. |
| Jun. 14, 1993 | Respondent Amended Witness List filed. |
| Jun. 14, 1993 | Motion to Amend Respondent`s Witness List filed. |
| Jun. 14, 1993 | Petitioners` Motion En Limine to Preclude Re-Litigation of Factual Issues Barred by Collateral Estoppel filed. |
| Jun. 11, 1993 | Petitioners' Request for Official Recognition filed. |
| Jun. 11, 1993 | Petitioners' Motion to Leave the Record Open for the Limited Purposedof the Tesimony of Edgar A. Fresen; Petitioner's Response to Respondent's Motion for Protective Order; Petitioner's Response to Respondent's Motion for Partially Administrativei Dismi |
| Jun. 10, 1993 | Ltr. to PMR from P. Amundsen filed. |
| Jun. 10, 1993 | Petitioner`s Motion to Compel Discovery and to Tax Costs; Motion to Compel Depositions of Witnesses Sadler and Shreve and Alternative Motion to Exclude Testimony filed. |
| Jun. 07, 1993 | Motion for Protective Order filed. |
| Jun. 07, 1993 | Motion for Protective Order filed. |
| Jun. 07, 1993 | Motion for Partial Administrative Dismissal or in the Alternative Motion for Partial Summary Final Order filed. |
| Jun. 07, 1993 | Motion to Permit the Inspection of Robert Davis' Personnel File filed. |
| Jun. 07, 1993 | Motion to Amend Answer to Petition for Relief; Amended Answer and Defenses filed. |
| Jun. 07, 1993 | Notice of Depositions filed. |
| May 20, 1993 | Notice of Hearing filed. (From Paul H. Amundsen) |
| May 18, 1993 | Notice of Cancellation of Depositions filed. (From Paul H. Amundsen) |
| May 17, 1993 | Ltr to L. Wilson from G. Green re: court report confirmation sent out. |
| May 17, 1993 | (Respondent) Response to Petitioner`s Motion to Compel filed. |
| May 17, 1993 | Amended Notice of Hearing sent out. (hearing set for 6-17-93; 9:00am;Marianna) |
| May 17, 1993 | (Respondent) Response to Petitioner`s Motion to Compel filed. |
| May 14, 1993 | Order sent out. (discovery deadline is extended to 6-9-93) |
| May 13, 1993 | Ltr to Linda Wilson from G. Green re: court report confirmation sent out. |
| May 13, 1993 | Amended Notice of Taking Depositions filed. |
| May 13, 1993 | Second Notice of Hearing sent out. (hearing set for 6-14-93; 9:00am;Marianna) |
| May 11, 1993 | Ltr. to PMR from P. Amundsen re: clarification of available dates for hearing filed. |
| May 07, 1993 | (Petitioner) Motion to Compel filed. |
| May 06, 1993 | Witness Lists filed. |
| May 06, 1993 | Letter to PMR from Paul H. Amundsen (re: telephone conference call) filed. |
| May 06, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report within 7 days of the date of this order) |
| May 05, 1993 | Notice of Taking Deposition w/Exhibit-A filed. (From Paul H. Amundsen) |
| May 05, 1993 | Petitioner`s Motion to Stay Discovery Cutoff Pending Receipt of Documents w/Respondent`s Response to Petitioner`s Response to Petitioner`s First Request for Production of Documents filed. |
| Apr. 28, 1993 | (Petitioner) Notice of Hearing; Notice of Filing Respondent Russell Corporation`s Answers to Interrogatories w/Respondent`s Response to Petitioner`s Interrogatories filed. |
| Apr. 28, 1993 | Respondent`s Objection to Petitioner`s Motion for Continuance filed. |
| Apr. 22, 1993 | Petitioner`s Motion for Continuance filed. |
| Apr. 13, 1993 | Ltr to Linda Wilson from Gail Green re: court report confirmation sent out. |
| Apr. 13, 1993 | Notice of Hearing sent out. (hearing set for 5-10-93; 9:00am; Marianna) |
| Mar. 26, 1993 | Petitioners` First Request for Production of Documents to Respondent Russell Corporation filed. |
| Mar. 22, 1993 | (Petitioner) Notice of Appearance as Co-Counsel filed. |
| Mar. 17, 1993 | Notice of Appearance as Coo-Counsel filed. (From Paul H. Amundsen) |
| Feb. 12, 1993 | (Respondent) Answer and Defenses filed. |
| Feb. 08, 1993 | Ltr. to PMR from Larry E. Gray re: Reply to Initial Order filed. |
| Feb. 08, 1993 | Letter to PMR from Mary c. O`Rourke (re: request for Hearing Officer`s Orders) filed. |
| Feb. 05, 1993 | Order sent out. (counsel of record shall be deemed to remain counsel of record until a Motion complying with the above cited rule and conclusions is submitted and served) |
| Jan. 28, 1993 | Initial Order sent out. |
| Jan. 21, 1993 | Transmittal of Petition; Complaint; Notice of Determination(2); Petition for Relief/Request for Hearing; Notice to Respondent of Filing of Petition for Relief From An Unlawful Employment Practice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 15, 1996 | Opinion | |
| May 05, 1995 | Agency Final Order | |
| Jun. 09, 1994 | Recommended Order | Petitioner did not show direct evid. of discrm. Preponderance of evidence nor did promotional and discipline practices re: comparative employees show hostile environment. |
