STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN FALCON, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 93-6651

) FCHR NO. 93-2161

THE SILENT WITNESS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 11, 1994, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Carol Swanson, Esquire

801 North Magnolia Avenue, Suite 302

Orlando, Florida 32803

For Respondent: Dorothy H. Green, Esquire

Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was terminated from the position of a District Manager with the Respondent on or about December 21, 1992, on the basis of his national origin (Hispanic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).

PRELIMINARY STATEMENT

The Petitioner filed a complaint with the Orlando Human Relations Department and the EEOC on or about December 29, 1992, charging the Respondent with employment discrimination under Title VII of the Civil Rights Act of 1964. The case was deferred to the Florida Commission on Human Relations for investigation. Subsequently, on or about October 8, 1993, a determination was issued by the FCHR. On November 10, 1993, the Petitioner filed a Petition for Relief with the FCHR and requested a formal hearing on this matter.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on November 18, 1993. Following discovery, a formal hearing was set. However, the case was continued due to the serious illness of a principal in the Respondent corporation. Subsequently, the case was re-set and this hearing followed.

At the hearing, Petitioner presented the testimony of two witnesses, and Petitioner testified in his own behalf. Seven exhibits were received in evidence. The Respondent presented the testimony of three witnesses, and Respondent's exhibits nos. 1-10, 12-15 were received in evidence. One tendered exhibit was excluded from evidence on the grounds of hearsay and irrelevancy. A transcript of the proceedings was ordered and filed on November 9, 1994. The parties were allowed ten days from the filing of the transcript in which to file proposed findings of fact and conclusions of law. Prior thereto, the parties jointly requested additional time in which to file their proposals, which was GRANTED. Petitioner filed his proposed findings of fact and conclusions of law and a proposed recommended order on December 8, 1994. Respondent filed proposed findings and its brief on December 7, 1994. Each of the parties' proposals have been given careful consideration and my specific rulings on the proposals are contained in the Appendix.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, The Silent Witness, Inc., is a corporation engaged in providing worker's compensation investigative services for insurance companies. It currently employs approximately forty (40) employees. In December, 1992, it employed approximately 71 employees. Respondent is an employer under the Florida Civil Rights Act of 1992.

   
   

2. Respondent has been in business since 1988. Bob Gott, President of Respondent, and Phil Sanford, Vice President, were owners of the Company at all times relevant to this case.

   
   

3. At the relevant time, a company Directorate had been established for managing the day to day operations of the company. The Directorate was made up of five (5) employees, Jim Yockey, Director of Operations (Atlanta), Tom Overton, Director of Operations, Jo Branton, Director of Sales, Sheila Harold, Director of Administration, and Keith Freeman, Director of Human Resources.

   
   

4. The Respondent has adopted and had in effect at all times pertinent, a written policy of equal employment opportunity. Respondent has employed and promoted Hispanic and African-American employees in the past.

   
   

5. Petitioner, Juan Falcon, is an American male of Hispanic (Puerto Rican) descent. Petitioner was employed by Respondent from August 10, 1992 until December 21, 1992 as a Division Manager. Petitioner was hired a rate of pay of

   $500 per week and received a $100 per week raise in September, 1992. During the course of his employment, Petitioner was not reprimanded for poor performance.

   
   

6. Petitioner was interviewed and hired into a management position (Division Manager) upon the recommendation of Keith Freeman who had known and supervised him at a previous employer, Florida Claims Bureau.

   
   

7. During the relevant time period, there were three division managers in the Respondent's investigative division, Petitioner, Danny Laughlin and Tom Overton. Petitioner and Danny Laughlin, an African-American, reported to Tom Overton, a white male, Director of Operations, who also acted as a Division Manager.

8. In the fall of 1992, the owners, Bob Gott and Phil Sanford, and the Directorate became concerned with problems in the Operations Department. These problems related to communications with other departments, loss of customers, and lack of follow up by the Operations Department after additional training.

   
   

9. In December, 1992, Bob Gott came to Keith Freeman and stated to Freeman that he had found an audio tape on his desk. Gott stated that he did not know where the tape came from or who had placed it there but he had listened to it. Gott stated to Freeman that the substance of the tape was indicative of attitude problems the Petitioner and others were having and important enough to discuss at the next Directorate meeting. The tape apparently consisted of conversations between Laughlin and the Petitioner and investigators working under each of them. The conversations included debriefings of the investigators. Gott believed the tape demonstrated poor attitudes on the part of the Division Managers and investigators involved.

   
   

10. Gott came to the Directorate meeting on December 8, 1992. He advised the Directorate that he had a tape, that he did not know where the tape came from, that he was disturbed by the contents of the tape, and that he wanted the Directorate to review the tape and take appropriate action. Gott then left the meeting.

    
    

11. The Directorate listened to the tape and appointed Tom Overton to conduct an investigation into the problems reflected on the tape. Overton was to report back to the Directorate at the next meeting with an analysis of what he felt was wrong with the Operations Department and how to improve its operations and fix the problems. The Directorate specifically ordered Overton not to discuss the investigation with anyone other than the members of the Directorate or the owners.

    
    

12. Overton contacted all of the employees who were on the tape, except one, and played the tape at a meeting in his home. Petitioner and Danny Laughlin, who were Division Managers, as well as Mark Jarrett and John Bagley who were investigators were present. Jarrett worked under the Petitioner and Bagley worked under Laughlin. Theresa Miller, who worked under Laughlin, was also on the tape but was not present because she was out of town. Overton told those present not to say anything about the tape and not to admit that they knew the tape existed.

    
    

13. Gott found out that Overton had played the tape for those on it and had divulged the existence of the investigation to other people in the company. When confronted by Gott, Overton initially denied he had let his employees listen to the tape, but eventually admitted it sometime before December 21, 1992, the date when Petitioner was terminated.

    
    

14. On or about December 17, 1992, Gott spoke briefly with the Petitioner concerning the Petitioner's knowledge about the tape and the meeting at which Overton played it. The Petitioner denied any knowledge of any tape recordings because he believed he might lose his job. Gott came to Freeman and asked him to meet with Gott and the Petitioner. Gott was concerned that the Petitioner had denied any knowledge of the tape because everyone else involved had said the Petitioner was at the meeting where Overton played the tapes. Gott was aware of Freeman's relationship with the Petitioner and wanted Freeman to meet with Gott and the Petitioner to try to alleviate the Petitioner's concerns and try to get him to honestly answer the questions.

15. Later the same day, Freeman and Gott met with the Petitioner in Freeman's office. Freeman told the Petitioner that he had known the Petitioner for years, that he had helped bring the Petitioner into the company and that the Petitioner did not need to be concerned about his position as long as he told the truth. Freeman also told the Petitioner that if a manager had told the Petitioner to do something the Petitioner was uncomfortable with, the only person he had to be honest with was the owner of the company. The Petitioner was specifically asked if he heard the tape, if he had any knowledge of the tape, and if he was in a meeting with Overton. The Petitioner stated that he was not aware of any tape recordings made between investigators and their managers and he did not attend a meeting called by Overton.

    
    

16. At the next meeting of the Directorate, the Directors discussed the fact that Overton had divulged the investigation and contents of the tape to outside parties and discussed it with other people besides the Directorate. Overton was not at the meeting because he had admitted this to Gott. The Directorate voted to terminate Overton for direct violation of the Directorate's orders; however, because of Overton's longevity with the Respondent it voted to offer Overton a demotion. The Directorate voted to terminate Laughlin for lack of performance. The Directorate voted to terminate the Petitioner for dishonesty.

    
    

17. On December 21, 1992, Overton was called into the Directorate meeting and was terminated and then offered a demotion. The Petitioner was called in next and was terminated for being dishonest to an executive officer and for lack of performance. Laughlin was called in and informed of his termination.

    
    

18. The day after Petitioner's discharge, Ed Coglin, a white investigator was promoted to the position of Division Manager at a rate of pay of $650 per week. Coglin had not passed his division manager's test at the time of his promotion.

    
    

19. At the end of the week, Phillip Sanford, Vice President of the Respondent, called Laughlin and offered him a job in a demoted position as a senior investigator. Laughlin indicated he had had a number of other offers with other companies and declined the offer. Sanford did not contact the Petitioner to offer him a position because of his dishonesty in response to Freeman and Gott's questions about the tape.

    
    

20. The week after their termination on December 21, 1992, Laughlin and the Petitioner filed a complaint with the Altamonte Springs Police Department concerning the tape of their conversations with their investigators. The complaint was forwarded to the State Attorney's office, which took no action.

    
    

21. Between January, 1992 and June 1993, at least eight other employees besides the Petitioner have been terminated for poor work performance. Of those eight, two were Hispanic, five were white and one was black. Two other employees, one white and one Hispanic, were terminated for dishonesty in 1990.

    
    

22. The Petitioner was specifically informed that he could be terminated without notice for dishonesty when he was first employed. In fact on August 10, 1992, the Petitioner signed and acknowledged the list of termination offenses. The Respondent's employee policy handbook also states that dishonesty in dealing with clients or management are grounds for immediate termination.

23. At the time of the Petitioner's termination, two employees were promoted to Division Manager, i.e., Reginald McCutchen, black, and Ed Coughlin, white. One Division Manager position was eliminated. McCutchen was in the Atlanta office at the time. Coughlin and Overton performed the duties of Division Manager in Orlando.

    
    

24. Respondent has employed twenty division managers since 1989. Of those twenty, seven were non-Caucasians. The longevity of the division managers is delineated below:

    
    

    Caucasian division managers:

    5 years		2
    4 years		1
    3 years +		5
    2 years +		2
    1 year +		2
    6 months		1
    	TOTAL	13
    Non-Caucasian	division	managers:
    2 months		1
    4 months		1
    1 year +		2 (Laughlin + McCutcheon
    who worked in	Atlanta)
    2 years +		2

    
    

    As of October, 1994, no Hispanic investigators were working for Respondent.

    
    

25. Petitioner claimed that Bob Gott, the Company President, was a racist and treated him discriminatorily by behaving coldly to him and never greeting him and because he was a "very cold distant type individual". Gott lacked interpersonal skills, could be moody, had an abrasive personality, and often spoke abruptly to other employees both Hispanic and non-Hispanic. The evidence failed to show that Gott had a "racist" attitude toward Hispanics.

    
    

26. The Petitioner claims he was treated differently than similarly situated non-Hispanic employees when he was terminated. The Petitioner failed to present sufficient evidence to show that he was terminated on the basis of his national origin (Puerto Rican).

    
    

27. As of Tuesday, December 22, 1992, the date of Petitioner's discharge, he was earning $600 per week. As of the date of the Division of Administrative Hearing's hearing Petitioner had accrued 94 weeks of back pay at the rate of

    $600. per week.

    
    

28. Following his discharge, Petitioner earned $14,897 in 1993 and he had earned $10,598 as of the date of the Division of Administrative Hearing's hearing on October 11, 1994. Thus, the information shows the following:

    
    

    INCOME AT SILENT WITNESS 94 x 600 = 55,200.00 INCOME ACTUALLY EARNED SINCE DISCHARGE:

    1993 14,897

    1994 10,598

    25,495.00

    TOTAL LOST INCOME 29,705.00

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 22T-8.016(1), Florida Administrative Code.

    
    

30. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's national origin. (Sec. 760.10(1)(a), F.S.)

    
    

31. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the recent case of St. Mary's Honor Center v. Hicks, U.S.

    ,113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of national origin discrimination.

    
    

32. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    
    

    1. The Petitioner is of Hispanic descent;

    2. The employee is qualified for the position; and

    3. The employee was subject to an adverse employment decision (Petitioner was terminated);

    4. The position was filled by a white person:

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729,

       29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769,

       29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

33. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

34. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

35. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

36. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, U.S. ,113 S.Ct. 2742 (1993).

    
    

37. In the case sub judice, the Petitioner has established that he is of Hispanic (Puerto Rican) descent and is a member of a protected class. He was qualified for the position of District Manager in the investigative division. The Petitioner has also established that he was subjected to an adverse employment decision when he was terminated on December 21, 1992, and that the position was filled by a white person. Therefore, the Plaintiff came forward with sufficient evidence to meet his initial burden of proof on the issue of national origin discrimination.

    
    

38. The sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting termination decision. The Respondent has done so. It established by a preponderance of admissible, relevant evidence that the Petitioner was terminated after Petitioner was dishonest in his responses to questions about the taping incident put to him by the President and Director of Human Resources and Training. He denied any knowledge of the taping incident. Even though the internal investigation was initiated after an illegally obtained audio tape was presented to the Directorate which precipitated the investigation, Respondent has rebutted the presumption of discrimination with its evidence that Petitioner was terminated for his dishonesty. See: Texas Department of Community Affairs

    v. Bendine, 450 U.S. 248 , 252-256 (1981); see also: Fostin v. Southern Bell Telephone and Telegraph Company, 16 FALR 162, 163-64 (FCHR 1993). However, no evidence was presented which showed a basis for Petitioner's termination to be due to poor work performance.

    
    

39. Petitioner was informed that he could be terminated without notice for dishonesty when he signed the list of termination offenses in August, 1992. In addition, the employee policy handbook states that dishonesty in dealing with clients or management are grounds for immediate termination.

40. Petitioner's evidence only suggested that the Respondent's stated basis for his termination was a pretext for discrimination against Petitioner because of his national origin. In a disparate treatment case, Petitioner must prove the Respondent had discriminatory intent. Steele v. City of Lynn Haven, 16 FALR 2185, 2192 (FCHR 1994.)

    
    

41. Petitioner has failed to prove that Respondent's stated reasons were a pretext for discrimination, St. Mary's Honor Center v. Hicks, U.S. , 113 S.Ct. 2742, 2751 (1993).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 17th day of March, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 17th day of March, 1995.

APPENDIX

The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact:

Accepted in substance: p.1, paragraph A.1 (in part); p.2, paragraphs 1, 2, 3; p. 3, B2; p.4, paragraph C.1 (in part); p.5, paragraph C.2.2; p.5, paragraph C.2.3. (in part); p.6, C.2.4.; p.6, C.2.5 (in part); p.7, D.1, D.2.

Rejected as contained in the Preliminary Statement: p.1, paragraph A.1 (in part); p.5, paragraph C.2.1, or subsumed.

Rejected as a argument on comment on the evidence and irrelevant and immaterial: p.3, paragraph B.1.; p.4, paragraph B.4, C.1 (in part); p.6, C.2.6.

Rejected as against the greater weight of evidence or hearsay: p.4, C.1 (in part); p.5, paragraph C.2.3. (in part); p.6., C.2.5 (in part).

Respondent's proposed findings of fact:

Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9, 10

(in part), 11, 12, 13 (p.4), 13 (p.5), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23.

Paragraphs rejected as argument or a comment on the evidence and irrelevant and immaterial:

Paragraphs 4 (in part), 10 (in part).

COPIES FURNISHED:

Carol Swanson, Esquire

801 N. Magnolia Avenue Ste 302

Orlando, Florida 32803

Dorothy F. Green, Esquire Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk 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 the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their 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: 93-006651

Orders for Case No: 93-006651