STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMON T. LEE, )

)

Petitioner, )

)

vs. ) Case No. 98-3683

) TREDIT TIRE & WHEEL CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on December 2, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ramon T. Lee, pro se

832 Augusta Street

Lakeland, Florida 33805

For Respondent: Antonio Faga, Esquire

375 Twelfth Avenue South Naples, Florida 34102

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.

PRELIMINARY MATTERS

On January 10, 1996, Petitioner, Ramon T. Lee, filed a charge of discrimination with the Florida Commission on Human Relations, (Commission), against the Respondent, Tredit Tire &

Wheel Co., Inc., (Tredit), alleging that on or about October 12, 1995, Tredit illegally terminated him from employment with the company because of his race. On August 4, 1998, after no action had been taken on his case for more than 180 days, Petitioner sought permission to withdraw his charge of discrimination and file a petition for relief. The Commission then concurred and forwarded the file to the Division of Administrative Hearings for formal hearing. This hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Deaundre L. Williams, a friend and co- worker at Tredit’s Plant City, Florida, facility. Petitioner sought and received permission to file an affidavit from his supervisor at the time in issue, Mr. Longo. The affidavit was not filed with the Division, however.

Respondent presented the testimony of Ronald A. Pike and Roland H. Bauer, Tredit’s vice president of operations; and secretary, part owner, and director, respectively. Respondent also introduced Respondent’s Exhibits A through E.

A transcript of the proceeding was not provided, and neither party submitted post-hearing matters for the consideration of the undersigned.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was

   employed by Tredit at that facility.

   
   

2. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if

   possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it,

   Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week.

3. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured

   by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however.

4. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to

   Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs.

5. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result.

6. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week,

   but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared.

   Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit,

   Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner.

   Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal.

7. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic.

8. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

10. Petitioner claims that his dismissal from employment with Tredit was based not on his performance and attitude but on the fact that he is African-American and, therefore, constitutes unlawful discrimination. Section 760.10(a), Florida Statutes, makes it an unlawful employment practice to discharge or to otherwise discriminate against any individual in employment because of that individual’s race, color, religion, sex, national origin, age handicap, or marital status. Section 760.11, Florida Statutes, provides that any person aggrieved by a violation of the statute may file a complaint with the Commission on Human Relations which, pursuant to the provisions of Section 760.11(4), may result in an administrative hearing under Sections 120.569 and 120.57, Florida Statutes. At such a hearing, the burden is upon the aggrieved person to show, by a preponderance of the evidence, that the alleged discriminatory practice took place.

11. The burden of proof in this case rests upon the Petitioner to establish discriminatory practices on the part of the Respondent by a preponderance of the evidence. Petitioner

    must first establish a prima facie showing of discrimination, and the burden of going forward with the evidence then shifts to the Respondent to show legitimate, non-discriminatory reasons for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.

    249 (1981). The Florida Commission on Human Relations has adopted this evidentiary model. Kirkpatrick v. Howard Johnson Co., 7 FALR 5468 (FCHR).

12. In the instant case, Petitioner has shown that he was discharged from employment with the Respondent, but has presented no evidence, either at hearing or subsequent thereto, to raise even a suspicion that his discharge was based on his race. Petitioner contends he did not quit his job with Respondent as Respondent claims, and the evidence of record supports that determination. However, as was noted in the prior paragraphs, his hostile and unacceptable reaction to the warning he received from Ms. Suggs justified his dismissal, and absent some evidence of discriminatory practice on the part of the Respondent, it can only be concluded that his misconduct, not his race, was the cause of his termination.

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 dismissing Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc.

DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1999.

COPIES FURNISHED:

Ramon T. Lee, pro se 832 Augusta Street

Lakeland, Florida 33805

Antonio Faga, Esquire

375 Twelfth Avenue South Naples, Florida 34102

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-003683

Orders for Case No: 98-003683