STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASTEL OLIZIA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1573

) MARINE MUFFLER CORPORATION, ) DAVID T. PARKS AND LEE WITTE, )

)

Respondents. )

) EDILON J. BAPTISTE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1589

) MARINE MUFFLER CORPORATION, ) DAVID T. PARKS AND LEE WITTE, )

)

Respondents. )

) MERLUCIEN OLIZIA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1590

) MARINE MUFFLER CORPORATION, ) DAVID T. PARKS AND LEE WITTE, )

)

Respondents. )

) FRANCOIS NORELIA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1591

) MARINE MUFFLER CORPORATION, ) DAVID T. PARKS AND LEE WITTE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal administrative hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 8, 1993, in Orlando, Florida.

APPEARANCES

For Petitioners: Castel Olizia, pro se

Edilon J. Baptiste, pro se Merlucier Olizia, pro se Francois Norelia, pro se 2007 Ravenall Avenue

Orlando, Florida 32811

For Respondent: Robin Fawsett, Esquire

Shutts & Bowen

20 North Orange Avenue, Suite 1000 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent committed the unlawful employment practices alleged in the Petition For Relief.

PRELIMINARY STATEMENT

These cases were referred to the Division Of Administrative Hearings and assigned to the undersigned on March 30, 1993. They were consolidated and set for formal hearing by an Order Granting Consolidation And Notice Of Hearing issued on April 22, 1993.

At the formal hearing, Petitioner, Edilon J. Baptiste, did not appear and did not present any evidence. Respondent's ore tenus motion to dismiss was granted by order entered on the record.

Petitioners, Castel Olizia, Merculier Olizia, and Francois Norelia ("Petitioners") testified in their own behalf and presented the testimony of Mr. Lee Witte, plant manager for Marine Muffler Corporation ("Marine Muffler"), and Mr. Emory Sims, President of Marine Muffler. Petitioners submitted a copy of a written offer of settlement as their only exhibit. Petitioners' Exhibit 1 was rejected pursuant to objection.

Respondents presented the testimony of: Ms. Diana D. Lashman, an employee of the City of Orlando, Department of Human Relations; Mr. Sims; and Mr. Witte. Respondents submitted seven exhibits for admission in evidence. Respondents' Exhibit 1 is a copy of the charge of discrimination. Respondents' Exhibit 2 is composite exhibit consisting of invoices and work orders. Respondents' Exhibit

1. is a composite exhibit consisting of weekly time cards. Respondents' Exhibit

2. is a composite exhibit consisting of other weekly time cards. Respondents' Exhibit 5 is a copy of page six of the Employees' Manual. Respondents' Exhibit

6 is a composite exhibit consisting of letters from Petitioners to Respondent. Respondents' Exhibit 7 is a composite exhibit consisting of the documents from the Human Relations Commission. Respondent's Exhibits 1-4 were admitted in evidence over objection. Respondents' Exhibits 5-7 were admitted in evidence without objection.

A transcript of the formal hearing was not filed with the undersigned. Respondents timely filed proposed findings of fact and conclusions of law on September 16, 1993. Petitioners have not filed proposed findings of fact and conclusions of law as of the date of this Recommended Order. Respondents' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioners, Merculier Olizia, Castel Olizia, and Francois Norelia ("Petitioners"), are black individuals of Haitian national origin. Mr. M. Olizia and Mr. Norelia were employed by Marine Muffler Corporation ("Marine Muffler") until March 10, 1992, when they were involuntarily discharged. Mr. C. Olizia was not involuntarily discharged but was removed from Marine Muffler's payroll sometime in 1992 after March 10, 1992.

   
   

2. Marine Muffler is an employer for the purposes of this proceeding. Marine Muffler is engaged in the business of building fiberglass mufflers in Apopka, Florida for use in inboard boats. Marine Muffler's customers are primarily manufacturers of inboard boats.

   
   

3. All of the outstanding stock of Marine Muffler is owned by Mr. Emery Sims, Mr. David Parks, and Mr. Sims' father. Mr. Sims is the President of Marine Muffler but is not a party to this proceeding. Respondent, David T. Parks, is the Vice President of Marine Muffler. Respondent, Lee Witte, is the plant manager for Marine Muffler. Mr. Witte has authority to hire and fire plant personnel, including Petitioners.

   
   

4. Petitioners worked in Marine Muffler's assembly plant on the same eight member work crew. Mr. M. Olizia was the lead crew member. Mr. Norelia was the assistant/substitute lead crew member.

   
   

5. Only Mr. M. Olizia and Mr. Norelia can read plans and drawings. A work crew must be able to read plans and drawings in order to assemble mufflers.

   
   

6. The normal work week is Monday through Thursday for 10 hours a day. Work done on Friday qualifies as overtime and is compensated at a rate equal to

   1.5 times the normal hourly rate of compensation.

   
   

7. Marine Muffler agrees to a shipping date for each work order it receives. Late shipment of mufflers to customers may delay the customer's production and jeopardizes customer relations for Marine Muffler.

   
   

8. During the payroll week ending March 7, 1992, Marine Muffler was behind in deliveries to important customers. For this reason, employees, including Petitioners, had been working overtime. Petitioners knew of the reason for the overtime work.

   
   

9. On Monday, March 9, 1992, Mr. Norelia came to the office of Mr. Witte early in the workday and said that he would not be able to work on Tuesday, March 10, 1992, for personal reasons. Mr. Norelia represented that he would be back at work on Wednesday, March 11, 1992. Mr. Witte assented to Mr. Norelia's request for leave on Tuesday, March 10, 1992.

   
   

10. Shortly thereafter, Mr. Baptiste came to Mr. Witte's office and asked for the day off on Tuesday, March 10, 1992. Mr. Baptiste said that he had personal matters to attend to and would return to work on Wednesday, March 11, 1992. Mr. Witte assented.

11. Later the same day, Mr. M. Olizia approached Mr. Witte in the assembly plant and stated that he could not come to work on Tuesday, March 10, 1992, and that his brother, Mr. C. Olizia, could not come in because he would not have a ride to work. Mr. Witte asked Mr. M. Olizia why he needed to be absent from work, and Mr. Olizia stated that his reasons were personal.

    
    

12. Mr. Witte told Mr. M. Olizia that neither he, Mr. Baptiste, nor Mr. Norelia could have Tuesday, March 10, 1992, off from work. Mr. Witte further advised Mr. Olizia that anyone of them who took Tuesday off would not have a job on Wednesday, March 11, 1992. Mr. Witte made the same statement to Mr. Baptiste and Mr. Norelia individually.

    
    

13. None of the Petitioners appeared for work on Tuesday, March 10, 1992. Mr. Witte discharged Mr. M. Olizia, Mr. Baptiste, and Mr. Norelia for their unexcused absence from work on March 10, 1992, in violation of direct instructions from their supervisor. The discharge was self executing upon the failure of each employee to appear at work.

    
    

14. On March 11, 1992, Mr. M. Olizia, Mr. Baptiste, and Mr. Norelia came to the premises of Marine Muffler and sought a meeting with Mr. Sims. They asked Mr. Sims to set aside Mr. Witte's decision to discharge them from their employment. Mr. Sims declined their request.

    
    

15. Petitioner's failure to appear for work on Tuesday, March 10, 1992, without leave and contrary to direct instructions from their supervisor violated Marine Muffler's written policy against unexcused absences. That policy provides that such absences may be the basis for termination of employment. Petitioner's were specifically advised that if they did not appear for work on Tuesday, March 10, 1992, that their employment would be terminated immediately.

    
    

16. Petitioners were needed at work on March 10, 1992, because plant production was behind and because the absence of all four workers on the same day would have rendered their eight man work crew ineffective. Petitioners were terminated because they were needed at work and because their unexcused absence was in direct violation of the instructions of their supervisor and established company policy.

    
    

17. Mr. C. Olizia has not appeared at work since Monday, March 9, 1992.

    He was removed from the payroll subsequent to March 11, 1992, as a result of his long and unexcused absence from work.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

19. The burden of proof in this proceeding is on Petitioners. Petitioners must establish by a preponderance of evidence that their termination from employment constituted an unlawful employment practice. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

20. Petitioners must make a prima facie showing of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Petitioners must show that they were a member of a protected group, that an adverse employment action took place, that Petitioners and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioners' group status and the disparate treatment. See Pugh v. Heinrich, 695 F.Supp. 533, 540 (M.D. Fla. 1988) affd. 933 F.2d 1020 (11th Cir. 1992).

    
    

21. If Petitioners satisfy the threshold requirement of a prima facie showing, then the employer has the burden of articulating a legitimate, nondiscriminatory reason for the action complained of. If the employer articulates such a reason, then Petitioners must prove by a preponderance of evidence that the reasons offered by the employer are a pretext for discrimination.

    
    

    If the plaintiff meets [the] initial burden, the burden shifts to the defendant employer to articulate some legitimate, non- discriminatory reason for rejecting the plaintiff. If the defendant carries this burden, the plaintiff must prove by preponderance the reasons offered by the employer were a pretext for discrimination by showing, for instance, discriminatory intent. The employer may rebut the pretext charge by proof of absence of discriminatory motive.

    See also Chalk v. Secretary of Labor, U.S. Dept. of Labor, 565 F.2d 764, 766-67 (D.C.

    Cir. 1977), cert. den., 435 U.S. 945, 98

    S.Ct. 1527, 55 L.Ed.2d 542 (1978). When the

    burden shifts initially after plaintiff establishes a prima facie case, the employer need not prove that it was actually motivated by articulated non-discriminatory reasons or that the hired applicant was more qualified than plaintiff. Texas Dept. of Community Affairs v. Burdine, U.S. , 101

    S.Ct. 1089, 67 L.Ed.2d 207 (1981).

    
    

    School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); See also, Department of Corrections v. Chandler, 582 So.2d 1183, 1185- 1186 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443,

    444 (Fla. 1st DCA 1990).

    
    

22. Petitioners failed to satisfy the threshold requirement of a prima facie showing of discrimination. Petitioners' testimony and the testimony of their witnesses failed to establish that an adverse employment action took place, that Petitioners and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioners' group status and the alleged disparate treatment.

23. Even if Petitioners had made the requisite prima facie showing in this proceeding, Respondents submitted competent and substantial evidence of a legitimate, nondiscriminatory reason for terminating Petitioners. Marine Muffler had a written policy prohibiting unexcused absences from work and Mr. Witte properly enforced that policy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioners' claim of

unlawful discrimination.

DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1573

Petitioners did not submit proposed findings of fact. Respondents' Proposed Findings of Fact

1. Rejected as procedural 2.-14. Accepted in substance

15. Rejected as a determination of the weight of evidence

16.-19. Accepted in substance

20. Rejected as a determination of the weight of evidence

21.-22. Accepted in substance 23.-25. Accepted in substance

COPIES FURNISHED:

Charles R. Fawsett, Esquire

20 North Orange Avenue, Suite 1000 Orlando, Florida 32801

Castel Olizia, pro se Edilon J. Baptiste, pro se Merlucier Olizia, pro se Francois Norelia, pro se 2007 Ravenall Avenue

Orlando, Florida 32811

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-001573

Orders for Case No: 93-001573