STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD COMER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4718

) COASTAL LUMBER COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 31, 1994, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Linda G. Miklowitz, Esquire

Post Office Box 14922 Tallahassee, Florida 32317-4922

For Respondent: Ms. Marilyn Strange

Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent is guilty of discrimination against the Petitioner on account of his sex (male). Embodied within that general issue are questions concerning whether the termination of the Petitioner from his job with the Respondent is an example of disparate discipline versus that meted out to female employees similarly situated; whether he was replaced by a person outside his protected class; and whether the Respondent's reasons for the termination were a pretext for intentional discrimination.

PRELIMINARY STATEMENT

This cause arose upon a complaint (and later Petition for Relief) filed by the Petitioner against his former employer, the Respondent, on December 29, 1993, in which he complained that he was subjected to discrimination on account of his sex (male) by virtue of his termination from employment. The Florida Commission on Human Relations (FCHR) issued a finding of no cause on July 14, 1994. Thereafter, a timely Petition for Relief was filed and the cause was ultimately transmitted to the undersigned Hearing Officer of the Division of Administrative Hearings for adjudication.

The cause came on for hearing as noticed. The Petitioner presented his own testimony, in his direct case and on rebuttal, and four exhibits at the hearing, and the Respondent presented six witnesses and fourteen exhibits. The Petitioner's four exhibits were admitted into evidence, and the Respondent's exhibits 2, 3, 4, 5, 6, 8, 9, 10, 12, 13 and 14 were admitted into evidence.

The parties elected to order a transcript of the proceedings and requested an extended briefing schedule for preparation of Proposed Recommended Orders, concomitantly waiving the 30-day time requirement for rendition of the Recommended Order. Subsequently thereto, the Respondent moved for an extension of time to file its Proposed Recommended Order, which was unopposed and was granted. Thereafter, on February 3, 1995, the Petitioner requested an extension of time because the court reporter failed to timely notify the Petitioner's counsel that the transcript had been filed and because the Petitioner, who is purportedly indigent, was further delayed in receiving the transcript because of his inability to pay for it. Good cause having been shown and the motion being agreed to by the Respondent, the motion was granted. On February 24, 1995, the Petitioner's Proposed Recommended Order was timely filed, with the Respondent's Proposed Recommended Order being filed on February 23, 1995. Thereafter, on March 13, 1995, an Amendment to the Petitioner's Proposed Recommended Order was filed by the Petitioner, which the Respondent moved to strike because it was filed out of time and it allegedly gave the Petitioner an unfair opportunity to rebutt the Respondent's Proposed Recommended Order when the documents were to have been simultaneously filed, according to the Hearing Officer's order. That Motion to Strike is granted. The proposed findings of fact submitted by the parties have been addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, at times pertinent hereto, was a male employee of the Respondent and was a "lead line operator" on a plywood manufacturing production line at the Respondent's plywood mill located in Hinson, Florida. The Petitioner claimed that he was subjected to a discriminatory employment practice on account of his sex (male), by being terminated based upon an altercation he got into with a female employee, who was not disciplined.

   
   

2. The Respondent is a forest-products company producing lumber and plywood at its mill in Hinson, Gadsden County, Florida. The Respondent is an employer, an envisioned by Section 760.10, Florida Statutes, and the Petitioner at times pertinent hereto was its employee.

   
   

3. On November 16, 1993, the Petitioner engaged in an altercation with another employee, Angela Brown, a female, the ultimate result of which was that he was terminated by the Respondent for threatening another employee. The Respondent has a "zero tolerance policy" for instances where employees threaten other employees. Pursuant to its written employee disciplinary policy, it can, in its discretion, immediately terminate such an employee, rather than engage in its four-step, gradual disciplinary procedure. No management personnel with employment disciplinary authority of the Respondent company witnessed the incident. The management with such decision-making authority gained its knowledge of the incident and made its decision based upon the results of the company's investigation of the matter, including conducting interviews with, and taking statements from, witnesses to the incident.

   
   

4. The incident occurred approximately 6:15 a.m. on the "graveyard shift", which ran from 11:00 p.m. at night to 7:00 a.m. in the morning. The incident occurred when the Petitioner observed that the production line had stopped, with

   the stoppage appearing to occur at or near Angela Brown's work station. The Petitioner went to her work station to see what the problem was, suspecting that she was "sleeping on the job". After straightening the veneer sheets lying on the production line conveyor, the Petitioner set the production line in motion, at which point he was standing behind Ms. Brown, out of her eyesight. While helping her straighten the veneer on the production line, he had been standing directly to her right. When he re-activated the line, he had gone back to the area of the control box and was standing behind her where she was unable to see him. He did not tell her that he had moved to the position to her right rear, after straightening the veneer. During questioning by his counsel, the Petitioner stated that he was standing back by the control box after he turned the production line back on and immediately before Ms. Brown hit him with a piece of veneer. Later in his testimony, the Petitioner claimed that he was standing beside her at the point when she discarded the veneer.

   
   

5. The preponderant evidence establishes that the Petitioner was standing to the right rear of Ms. Brown at the time she discarded the veneer in question. She believed that he had left her area and did not know that he was still standing behind her because her back was to him. She did not have time to check behind her to see if anyone was there before discarding the piece of plywood veneer because the production line moves at a rapid rate. She therefore had to concentrate and watch the plywood as it came by, in order to timely remove defective pieces of veneer.

   
   

6. It is common practice for employees or managers to notify an employee at a work station that they are behind them, so that the employee will know not to throw defective sheets of plywood off the production line, thus, potentially hitting someone standing behind them. The Petitioner did not notify Ms. Brown that he was still behind her, and she did not know that he was there, thinking he had left her area.

   
   

7. After he re-started the conveyor, and Ms. Brown believed that he had left her area, another defective sheet of veneer came down the production line. The trailing edge of the veneer was defective. When a trailing edge of a piece of veneer is defective, it is common practice for an employee to discard it to his or her right rear and throw it off the production line. If the leading edge of the veneer had been defective, it would have been discarded to the left rear of the employee removing it from the production line. When the sheet of veneer came down from the "sheet drop", and Ms. Brown noticed the trailing edge as defective, she started removing the wood from the production line. She pulled the sheet off to the right in the normal procedure for this sort of defect.

   
   

8. The Petitioner maintained that she threw the wood at him intentionally, as evidenced by his view that she was not throwing the wood off on the correct side. However, Ms. Brown, as corroborated by witnesses Strickland and Jenkins' testimony, stated that it is common practice for employees to pull veneer off to the right when it is defective on its trailing edge.

   
   

9. There was only one piece of veneer to be discarded by Ms. Brown. She picked the veneer up and had to fold it in order to handle it and get it out of her way. She folded the veneer and threw it to her right rear, striking the Petitioner on or about the nose. After she discarded the piece of veneer and struck the Petitioner with it, he immediately pushed her with his hands and raised a fist up as if to strike her.

   
   

10. In his testimony, he stated his position that Ms. Brown remained stationary at the point when she allegedly hit him with a second piece of

    veneer. He denied that she had taken steps backward from her position towards the production line and away from the Petitioner. He maintained, instead, that she had taken aggressive steps toward him. Witness Chadwick Jenkins, however, who was located three to ten feet away during the incident, saw Ms. Brown take two steps backward towards the production line, retreating from the Petitioner. This was consistent with Ms. Brown's testimony that the Petitioner had pushed her backwards. The Petitioner testified that Ms. Brown hit him with two pieces of wood veneer. His testimony indicates that he claims that she folded the piece of veneer and started to throw it or "yank it around", but that, in effect, it broke into two pieces, and he was hit with the top piece which she had in her hands, the bottom half having fallen on the floor. Then, according to the Petitioner, she reached down, picked that other piece up, threw it, and hit him with it. Ms. Brown denies his claim that he was hit with two pieces of veneer. On direct examination, she was emphatic in saying that she did not throw two pieces of veneer, that the sheet was too big and that she had to fold it to remove it from the production line, and that only one sheet was involved. She had to act quickly in throwing it off the production line to keep the line clear and moving. The sheet did not split in half.

    
    

11. The Petitioner also testified that Ms. Brown looked him "dead in the eye" when she allegedly threw two sheets of veneer at him. Ms. Brown denies this, stating that she did know that the Petitioner was even behind her, because she was looking at the production line and that it was necessary to look at the line in order to see the defective sheet of veneer and to be able to reach down and discard it before the line moved past her position. This testimony is corroborated by that of Mike Strickland, the "lay-up line superintendent", who testified to the effect that, in order to discard wood from the production line, one has to be looking at the line and facing the line with one's body so that one's hands and eyes coordinate, in effect, to remove the sheet of veneer from the production line. When this is done, because of time constraints, one must simply pick up the sheet, pull it around and discard it behind you in one quick motion, keeping eyes and body facing the production line. This testimony corroborates that of Ms. Brown to the effect that she was looking at the production line and did not realize that the Petitioner was behind her or realize that she had hit him with the wood until he forcibly pushed her.

    
    

12. Additionally, the testimony of Chadwick Jenkins and Donald Cooper corroborates Ms. Brown's version of events. Mr. Jenkins testified that Ms. Brown folded the sheet up and grabbed it by the end to remove it, and he knew that this was the only sheet removed because he only had to replace one sheet of veneer to the production line. Mr. Cooper saw only one piece of veneer thrown or discarded. He had an unobstructed view of those events, and the Petitioner himself corroborated the fact that the view was clear from where Mr. Cooper was located at the far end of the line to the place where the incident occurred.

    The Petitioner testified that one can see all the way down the line while walking up and down the line. Mr. Cooper was in a position to see the incident because he was on a raised platform. Thus, the totality of credible, preponderant evidence establishes that Ms. Brown hit the Petitioner with only one piece of veneer. The evidence also establishes that Ms. Brown's striking of the Petitioner with the single piece of veneer was not intentional.

    
    

13. After the piece of veneer inadvertently struck the Petitioner, he immediately shoved Ms. Brown and raised his fist as if to hit her. He testified that he was merely acting in self defense because he "just wanted her to quit coming up on me". The Petitioner's version of the events is that Ms. Brown walked into his outstretched hand. In fact, witness Jenkins stated that he saw the Petitioner with his fist up in the air and his other arm out straight. Mr.

    Jenkins further testified that when the Petitioner raised his fist in anger, he appeared to be in control of himself and to be aware of exactly what he was doing. Mr. Jenkins' observation of those events led him to interpret the situation to the effect that "it looked like he was fixing to hit her". Mr.

    Cooper saw the Petitioner as "Howard pushed her and he took his hand back and drew back to punch her". Mr. Cooper testified that when the Petitioner drew back as if to punch Ms. Brown, she looked as if she was in shock. Mr. Cooper saw no indication that Ms. Brown had advanced on the Petitioner and walked into his outstretched arm. Ms. Brown testified in a similar manner stating that when she inadvertently hit the Petitioner with the sheet of veneer, "He pushed me hard like this (indicating) and he told me that he would knock my 'm-f' off, and I told him he was 'f'ing' crazy. . . . Q: OK. Did you feel threatened at that point? A: Of course. As big as he is. Of course, I felt threatened. I thought he was going to knock me out. Q: What was your natural response at that point? A: I told him he was crazy. I got away from him. "

    
    

14. The Petitioner claimed for the first time, during his closing statement made at the unemployment appeals hearing, that he felt threatened about falling into the production line conveyor chain. The testimony of both Mr. Jenkins and Mr. Cooper, however, belies the Petitioner's position in this regard. They established that the Petitioner was not pushed toward the chain and that Ms. Brown did not move toward him in an aggressive manner or move toward him at all. The Petitioner remained stationary during the incident and was never in a position so that he could have been in danger of falling on the production line chain. The specific opening which the Petitioner claimed he could have fallen into was protected by guardrails, as shown by witness Jenkins.

    
    

15. Ms. Brown told the Petitioner that she was going to tell Earl Lee, their supervisor, about the incident. She walked to the end of the production line looking for her supervisor and saw Mr. Cooper, who directed her to Mr. Lee's location. Ms. Brown then went upstairs and found Mr. Strickland, the lay- up line supervisor, and Earl Lee to tell them about the incident. Although the Petitioner maintains that Ms. Brown was the aggressor in the incident and that he was only defending himself, the Petitioner never made an effort to notify anyone of the incident. Upon Ms. Brown's report of the incident, an investigation was commenced by the company to determine what had happened and who was at fault.

    
    

16. The investigation began with Mr. Lee questioning Ms. Brown and the Petitioner about the incident. During the questioning, the Petitioner told Mr. Lee, Jim Stelbasky, and Mike Strickland, all supervisory personnel, that he would have hit Ms. Brown if she had been a male. Ms. Brown gave details of the incident to Mr. Lee, as well. She told Mr. Lee that she hit the Petitioner with some veneer but that it was accidental. Witnesses Jenkins and Cooper gave statements to Mr. Lee about the incident. Each claimed that they were witnesses to the incident in whole or in part. They gave statements concerning their observations regarding the incident to Mr. Lee, which are contained in Respondent's Exhibits 11 and 12, in evidence.

    
    

17. Mr. Lee and other management personnel with decision-making authority in employment discipline matters did not observe the incident. Therefore, Mr. Lee, in making his investigation, relied upon the statements of Mr. Jenkins, Mr. Cooper, the Petitioner, and Ms. Brown and considered all of them in making a decision. The statements of Mr. Jenkins, Mr. Cooper, and Ms. Brown, along with Mr. Lee's belief that in this circumstance, the victim, not the aggressor, would be the one likely to report such an incident, were consistent and persuasive to the effect that the Petitioner was the instigator or aggressor in the incident.

    Therefore, in accordance with the results of Mr. Lee's investigation and pursuant to consistent company policy of terminating employees for threatening other employees, even for the first offense, the Respondent elected to terminate the Petitioner from employment.

    
    

18. Mr. Lee, the decision-maker herein, believed Ms. Brown and the witnesses who corroborated her version of events. He determined that, in his mind, they were telling the truth. Mr. Lee thus believed that the Petitioner was threatening another employee and under the company policy, that was cause for termination. Consequently, he did so, although he testified that he did not terminate the Petitioner because he was a male and that his sex had nothing to do with his decision. It also had nothing to do with the decision that Ms. Brown should not be reprimanded. He did not reprimand Ms. Brown because he did not feel that she was at fault in the incident. He felt that the Petitioner was the aggressor, which is why the Petitioner was disciplined and Ms. Brown was not.

    
    

19. The Respondent has a policy providing that when any employee makes any type of threat against another employee, the graduated disciplinary procedures are not applicable, rather, termination can be immediately meted out. It is noteworthy, in terms of establishing that this is a regularly-followed practice, and in refuting the Petitioner's claim that he was discriminated against because he is a male, that approximately two weeks prior to the Petitioner's termination, the Respondent terminated a female employee for fighting on the job. This substantiates that the Respondent has a consistent policy of not tolerating threats made against any other employees by an employee, regardless of that employee's gender. The testimony of Steve Hoffman, the Respondent's Human Resources Officer, shows that in his two and one-half years in that capacity or a related capacity with the company, in any case where an employee has been determined to have made threats against another employee, the company consistently terminates such an employee. The Petitioner has simply not established that he has been the victim of disparate treatment because he is a male. It was not demonstrated that upon his termination, the Petitioner was replaced by an employee of another class, i.e., a female, nor did the Petitioner demonstrate that the Respondent has meted out less severe discipline to such offending employees who are non-male. In fact, the Petitioner himself was replaced with a male employee. There has simply been no proof to establish that the employment decision herein, however harsh it may seem, was motivated by discriminatory intent to single out the Petitioner for disparate treatment because he is a male.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Initially, it is noted that the Petitioner asserts that final agency action by the Unemployment Appeals Commission, finding, in effect, that the Petitioner was not discharged for his own misconduct by the Respondent constitutes collateral estoppel and that the findings of fact made in the Unemployment Appeals Order thus control the fact finding in the case at bar. That is a legally incorrect proposition. Even if the findings of fact made by the Unemployment Appeals Commission did not involve differing factual issues and legal issues arising out of the subject area regulated by that agency under the purview of its different organic regulatory statutes and rules, the fact remains that the Doctrine of Collateral Estoppel cannot be used offensively in Florida

    by the moving party with the burden of proof in a later action. Romano v. Trucking Employees of New Jersey Welfare Fund, Inc. on Behalf of Romano Bros., Ltd., Fla. App. 4th Dist. 427 So.2d 802, Approved 450 So.2d 843.

    
    

22. Moreover, even if those findings of fact made by the other agency were binding in this proceeding and supportive of a factual determination that the Petitioner was not at fault in the altercation which led to termination, the application of such facts in this case would not control the determination of ultimate fact as to the presence or absence of discriminatory intent by the Respondent. The inquiry that is precisely relevant is one as to the motive of the company in executing its termination decision. If, after a good-faith, bona fide investigation of the incident, including the taking of statements of witnesses, etc., the company made a good-faith determination that its policy against one employee threatening another had been violated and termination was imposed, as happened in the instant situation, then the termination is for a legitimate, business-related, nondiscriminatory reason.

    
    

23. It makes no legal difference if the company's reason was mistaken or erroneous, so long as the company acted responsibly in arriving at the decision and made it without having a discriminatory motive. The fact that the termination decision was harsh under the circumstances and even if the decision was based on a mistaken view of the facts, the company cannot be held to have discriminated against the Petitioner, in terms of Section 760.10, Florida Statutes, and cases interpreting that provision if it harbored no discriminatory intent at the time the employment decision was made. Consequently, even if the findings of fact made by the Unemployment Appeals Commission were binding in this proceeding, those findings of fact are not legally material and controlling on the determination of the pivotal factual and legal issues in this proceeding.

    
    

24. Section 760.10, Florida Statutes, as pertinent to this case, provides as follows:

    
    

    760.10 Unlawful Employment Practices: Remedy: Construction.

    (1) It is an unlawful employment practice for an employer to discharge or to fail to refuse to

    hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status . . .

    
    

25. The legal principles and precedents established in federal anti- discrimination laws, specifically Title VII, of the Civil Rights Act of 1964, 42 U.S.C., Section 2000, et seq., are to be accorded great deference when applying Chapter 760, Florida Statutes. See, School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); and Pasco County School Board v. P.E.R.C., 253 So.2d 108 (Fla. 1st DCA 1979).

    
    

26. The Supreme Court of the United States established, in McDonnell- Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 238 (1981), the analysis to be used in cases alleging discrimination under Title VII, which is persuasive in cases such as this, arising under Chapter 760, Florida Statutes. This analysis was recently reiterated and refined in St. Mary's Honor Center v. Hicks, 113B S.Ct. 2742 (1993). Pursuant to this analysis, the Petitioner has the burden of

    establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, the Respondent employer must articulate some legitimate, nondiscriminatory reason for the action taken against the Petitioner. The Petitioner must then prove that the reasons offered by the Respondent are not the true reasons but are, rather, a pretext for discrimination. The Supreme Court stated in Hicks, that before finding discrimination, "the fact finder must believe the plaintiff's explanation of intentional discrimination". 113 S.Ct. at 2754. Put another way, although the burden of going forward to articulate a nondiscriminatory reason for the action taken against the employee shifts to the employer, once a prima facie case is established, the ultimate burden of persuasion or proof always remains with the petitioner making the claim. The Petitioner herein failed to meet his burden of proof, as required by the above analysis, concerning whether discrimination in employment, based upon his gender, occurred.

    
    

27. In establishing a prima facie case, the Petitioner must establish that he is member of a protected class; that he was discharged or otherwise disciplined in a manner disparate from employees who are not members of that protected class; that he was replaced by a person outside the protected class or that those outside the protected class were not subjected to the same degree of discipline for similar infractions. He must also establish that he was qualified to perform the job in question. See, Lee v. Russell County School Board of Education, 604 F.2d 769 (11th Cir. 1982); and Maggio v. Martin-Marietta Aerospace, 9 F.A.L.R. 2168 (FCHR 1986).

    
    

28. The Petitioner has demonstrated that he is a member of a protected class in the sense that he is a male and he has filed a petition asserting discrimination by the Respondent based upon his being a male. Section 760.10, Florida Statutes, quoted above, protects a person from discrimination by an employer on account of that person's gender, so in that context, the Petitioner has established that he is a member of a protected class entitled to seek redress for discrimination based upon his gender. The Petitioner, however, failed to establish that, upon his termination, he was replaced by another employee of a different gender. In fact, he was replaced by another black male. The Petitioner also failed to establish that he was disparately disciplined based upon his sex. Rather, he was disciplined, instead of the woman who was involved in the incident in question, not because of his gender, but rather because he was perceived by the employer to be the aggressor who was threatening to strike the other employee who happened to be a woman. Under the company's regularly-followed disciplinary policy, when an employee threatens another, that is a justification for immediate termination, rather than embarking on the normal four-step employee disciplinary procedure.

    
    

29. Moreover, and more pointedly, it was established, in contradiction of the Petitioner's position that he was subjected to disparate disciplinary treatment, that the employer herein had also meted out the same discipline to a female employee within two weeks of the action in question in this proceeding. That is, the Respondent summarily terminated a female employee for engaging in a physical altercation in a similar situation to that involved with the case at bar.

    
    

30. The Petitioner has simply failed to adduce any preponderant evidence which would demonstrate that other employees committing similar infractions were disciplined in a different or less harsh manner than the Petitioner. He, thus, has not established that he was disciplined in a manner disparate from employees who are not members of his purported protected class, that is, female employees. The Petitioner has established that he was qualified to perform the job in

    question from which he was terminated and, indeed, that issue was not actually in dispute. The Petitioner, however, has failed to establish a prima facie case for the above reasons and at this point in the analysis, the Petition must fail.

    
    

31. Even had the Petitioner established a prima facie case of discrimination based upon his sex, which he did not, the weight of the evidence supports the conclusion that the Respondent had a nondiscriminatory, business- related rationale for the discharge of the Petitioner. It was shown by the Respondent that it had a regular and consistent policy of immediate termination of any employee who fought with or threatened another employee. That evidence was not refuted by the Petitioner. The preponderant evidence shows that the company metes out that disciplinary measure, however harsh it may be perceived to be, without discrimination between male and female. The Petitioner was terminated for being the aggressor in the altercation with Ms. Brown, and a female employee referenced in the above Findings of Fact was equally terminated immediately upon being determined to be the aggressor in a physical altercation with another employee.

    
    

32. Even if one might deplore the severity of the immediate termination for these reasons, the termination was not shown to have occurred because of discrimination because of the Petitioner's gender. This is especially true when it is considered that the Petitioner was replaced by a male in his former employment position. The Respondent demonstrated that although it has a graduated-step disciplinary policy and procedure which it regularly follows, the situation of an employee threatening another employee constitutes a regularly- followed exception to that normal graduated-step disciplinary policy and procedure. It showed that it normally elects to terminate employees who threaten other employees, whether they are male or female. It demonstrated that it has a strong managerial interest in avoiding injuries to other employees or damage to company property or employee property and avoiding ramifications involving legal liability for employee injuries or property damage, all of which deleterious effects it seeks to minimize by having a firm, resolutely enforced policy of termination upon the threatening of or carrying out of physical violence by one employee on another. Under the circumstances referenced herein, it is concluded that a legitimate, nondiscriminatory business reason for the termination in question has not only been articulated, but proven by preponderant, credible evidence by the Respondent.

    
    

33. On the other hand, it has not been demonstrated by the Petitioner that the reasons enunciated by the Respondent for the termination were, in fact, pretextual and a mask for what really amounted to discrimination on account of the Petitioner's gender. No preponderant, credible evidence was shown to indicate that the Respondent treated other classes of employees, not within the protected class of the Petitioner's gender, in a different or less harsh disciplinary manner from the way in which it dealt with the Petitioner in the circumstances at issue. Even if one might deem the immediate termination, without a prior disciplinary record of the Petitioner (although past verbal disciplinary reprimands had been made for failure to control his temper) and even if the Respondent was shown to be mistaken in believing the Petitioner to be the aggressor, the Petitioner still cannot prevail if the Petitioner does not show that the disciplinary measure was carried out with intent to discriminate on account of the Petitioner's sex. This was clearly not proven by the Petitioner.

    
    

34. The Respondent made a thorough investigation of the incident in question, interviewed and took statements from eye witnesses, who also testified at hearing on the Respondent's behalf and came to a genuine, good-faith belief

that the Petitioner was the aggressor in the incident. Since the Respondent had that good-faith belief that the Petitioner was at fault in violating company policy and since that company policy, albeit harsh, had consistently been carried out to effect immediate termination of an employee who threatened another employee, it was not demonstrated that this seemingly harsh result was due to discriminatory motivation. In fact, the Petitioner was replaced with a male employee and a female employee, who engaged in a physical altercation with another employee, closely contemporaneous to the one involved in this proceeding, was also summarily terminated for the same reason of company policy. It has, thus, not been demonstrated that any discriminatory intent, of the type prescribed by Section 760.10, Florida Statutes, was harbored or carried out by the Respondent in the manner in which it disciplined the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Commission on Human Relations which dismisses the Petition in its entirety.

DONE AND ENTERED this 24th day of April, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 24th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4718

Petitioner's Proposed Findings of Fact 1-5. Accepted.

6-18. Rejected, as not entirely in accord with the preponderant weight

of the credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.

19-21. Accepted.

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

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

24-25. Accepted, but not dispositive of the material issues presented.

1. Accepted, only in the sense that there is not a written formal reprimand in the Petitioner's personnel file. The evidence reflects that he had been informally admonished or disciplined concerning acts related to his temper.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and for the reason that it was not necessarily a first offense since the Petitioner had been informally disciplined concerning his past inability to control his temper at times.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact, to the extent they are not inconsistent with the Hearing Officer's findings of fact, are accepted. To the extent that they are so inconsistent, they are rejected as not being supported by preponderant, credible evidence of record, as being immaterial, irrelevant, or unnecessary.

COPIES FURNISHED:

Linda G. Miklowitz, Esquire Post Office Box 14922

Tallahassee, Florida 32317-4922

Ms. Marilyn Strange Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

HOWARD COMER,

Petitioner, EEOC Case No.15D94021 FCHR Case No. 94-8182

v. DOAH Case No. 94-4718

FCHR Order No. 95-053

COASTAL LUMBER COMPANY,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Howard Comer filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Section 760.01-760.11, Florida Statutes (1993), alleging that Respondent Coastal Lumber Company committed an unlawful employment practice by terminating him on the basis of his sex (male).

The allegations set forth in the complaint were investigated and, on July 14, 1994, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, received by the Commission on August 11, 1994, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

A formal administrative hearing was held in Tallahassee, Florida, on October 31, 1994, before Hearing Officer P. Michael Ruff.

Hearing Officer Ruff issued a Recommended Order of dismissal, dated April 24, 1995.

Pursuant to notice, public deliberations were held on October 12, 1995, in Tallahassee, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

FINDINGS OF FACT

The Hearing Officer's findings of fact are supported by competent substantial evidence. We adopt the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

The overall application of law by the Hearing Officer is a correct disposition of the case.

We note that the Hearing Officer found that Petitioner failed to establish a prima facie case of sex discrimination. Recommended Order, 28.

In conclusions of law accepted by the Commission in a case in which a female employee alleged unlawful sex discrimination, it has been stated, "Initially, a Petitioner must establish a prima facie case of sex discrimination. In a company policy violation-discharge case, the plaintiff must show 1) that she is female; 2) that she and similarly situated male persons received dissimilar treatment; and 3) that sufficient evidence exists from which the court could find a causal connection between sex and the alleged acts of the employer" Austin v. Florida Power Corporation, 14 F.A.L.R. 1783, at 1794 (FCHR 1991).

Applying this test to the case before us, we find that Petitioner established (1) that he is male, and (2) that the female involved in the altercation leading to Petitioner's discharge was not terminated or otherwise disciplined. See Recommended Order, [ 1 and t 18. With regard to point (3) of the above-stated test, we note that the fact that an altercation occurred between a male (Petitioner) and a female, and the female was not disciplined while the male (Petitioner) was terminated, is sufficient evidence to find that there could be a causal connection between Petitioner's sex and his termination.

Thus, we find, contrary to the Hearing Officer, that Petitioner established a prima facie case of sex discrimination in this case.

We note, however, that we agree with the Hearing Officer's conclusion that, even if a prima facie case of sex discrimination was established by Petitioner, Petitioner has failed in carrying his ultimate burden of proving that Respondent committed an unlawful employment practice on the basis of Petitioner's sex. See Recommended Order, [ 31, 32, 1[ 33 and [ 34.

With the above-indicated modification, we adopt the Hearing Officer's conclusions of law.

Exceptions

The Petitioner filed twenty-three numbered exceptions to the Hearing Officer's Recommended Order.

We have adopted the Hearing Officer's findings of fact as indicated in the Findings of Fact section of this Order, supra. We have adopted the Hearing Officer's conclusions of law (as modified), as indicated in the Conclusions of Law section of this Order, supra.

We deny Petitioner's exceptions.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive a notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 11th day of December, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner, Whitfield Jenkins, Panel Chairperson;

Commissioner Clarethea Brooks; and Commissioner Ronald Townsend

Filed this 11th day of December, 1995. in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131

COPIES FURNISHED:

Howard Comer Route 2, Box 598

Havana, Florida 32333

Linda G. Miklowitz, Esquire 1589 Metropolitan Boulevard

P.O. Box 14922

Tallahassee, Florida 32317-4492

Marilyn Strange Administration Manager Coastal Lumber Company

P.O. Box 1128

Havana, Florida 32333

James Mallue, Legal Advisor for Commission Panel

P. Michael Ruff, DOAH Hearing Officer

Docket for Case No: 94-004718

Orders for Case No: 94-004718