STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM MITCHELL,
Petitioner,
vs.
WHITE OAK PLANTATION,
Respondent.
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) Case No. 02-2746
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held on September 13, 2002, in Yulee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William Mitchell, pro se
Post Office Box 1543 Cairo, Georgia 31728
For Respondent: Timothy B. Strong, Esquire
Amy H. Reisinger, Esquire
Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089
Jacksonville, Florida 32203 STATEMENT OF THE ISSUE
Whether Respondent Employer is guilty of an unlawful employment practice, as defined by Chapter 760, Part I, Florida Statutes, against Petitioner on the basis of his race (African- American).
PRELIMINARY STATEMENT
On or about August 19, 1999, Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations, alleging racial discrimination by Respondent Employer in violation of the Florida Civil Rights Act of 1992. A "Determination: No Cause" was entered by the Commission on or about June 4, 2002. Petitioner timely filed a Petition for Relief, which was referred to the Division of Administrative Hearings on or about July 11, 2002.
It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory terms against himself by co-employees and by a former co-employee. At hearing, however, Respondent contended that, although Petitioner clearly protested that his termination was on racial grounds in his Charge of Discrimination, he did not clearly state in his Petition for Relief that he was still complaining about being terminated due to discrimination. Respondent further asserted that because the Notice of Hearing only stated that the issues at hearing would be "as stated in the Petition for Relief," any evidence concerning Petitioner's termination should be excluded. However, Respondent also conceded that the issue of termination and evidence thereof was no surprise. (TR-62-63). The motion to exclude was denied, and the continuing objection to such
evidence was overruled, subject to re-visitation in this Recommended Order. (See Conclusions of Law.)
At the disputed-fact hearing, Petitioner presented the testimony of Charles Smith, Kristine Polk, Beverly Mitchell, Donovan Rewis, and Billy Davis, and testified on his own behalf. He had Petitioner's Exhibits 1, 4, 8, 9, and 10 admitted in evidence. Pages 4 and 5 of Petitioner's Exhibit 2 were also admitted in evidence. Pages 1 through 4 and pages 9 through 11 of Petitioner's Exhibit 7 are of limited weight and credibility, as reflected on the record, but the whole of the exhibit was admitted. Respondent presented the testimony of Ronnie Rogers and had Respondent's Exhibits 1 through 9 admitted in evidence.
A Transcript was filed on October 10, 2002. Respondent's timely-filed Proposed Recommended Order has been considered in preparation of this Recommended Order. Petitioner filed no proposals.
FINDINGS OF FACTS
White Oak Plantation is an "employer" as defined by Section 760.02(7), Florida Statutes. At all times material, Respondent was in the business of breeding, raising, selling, and showing thoroughbred horses.
Petitioner is an adult African-American male.
Petitioner was employed by Respondent from January 17, 1996 until March 19, 1999. Petitioner's employee evaluations
showed that at all times material he met expectations or exceeded expectations.
Petitioner was terminated by Billy Davis, his immediate superior, on March 19, 1999. Davis is a Caucasian male and at all times material was a Stable Manager.
It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory names against himself in the work place by Frank Gowen, a co-employee, and by Mike Brown, who at one point was a co-employee and who later was not an employee of Respondent.
With regard to his termination, Petitioner's Charge of Discrimination alleged:
3. On March 19, 1999, Mr. Martin, Billy Farmer and myself were heading to clean the stalls. Mr. Martin called me "buckwheat" [sic]. He then grabbed a nearby hose and hosed me down, soaking my clothes with water. I stood there in shock as Mr. Martin ran out of the stable. He came back and began threatening to turn me White [sic] with lime. He threw the lime, and it landed on my shoes. I threw a bucket of water on him in self-defense, hoping he would leave me alone to do my job. Instead, he began punching and kicking me, and I protected myself. Mr. Davis then entered the stable and asked if there was horse-play [sic] going on. He then stated that everyone would be punished. When questioned later, I told Mr. Davis what happened, and he accused me of letting Mr. Martin take the fall. On March 24, 1999, I was unjustly terminated.
On June 4, 2002, the Commission entered its Determination: No Cause. Petitioner timely filed a Petition for Relief, pursuant to Chapter 760, Florida Statutes, and the Rules of the Commission. His Petition alleged, with regard to his termination, as follows:
5. During my employment with respondent another incident that involved racial names being made to an African American [sic] employee by a white [sic] employee occurred. The African American [sic] employee complained to management. Both employees were terminated after the African American [sic] employee stated that he was defending himself after being called racial [sic] derogatory names by the white [sic] employee. The African American employee was rehired after EEOC intervined [sic]. I was defending myself and received serious injury to the right ankel [sic]. The ligament was torn out of place when another employee threw a 50# bag of shavings that hit me on the ankel [sic]. I suffer with a limp and serious pain from my ankel [sic] being reaggravated [sic] from the incident that occured [sic] on 03/20/99. I also suffer with anxity [sic] and depression from having been allowed to go through the comments alone when no one tried to stop it. I am seeking relief in the amount of 68000.00 [sic] for injuries sustained and for mental distress and anxity [sic].
After the case was referred to the Division of Administrative Hearings, a Notice of Hearing was issued, indicating that the disputed issues of material fact would be "as stated in the Petition for Relief."
While Petitioner's testimony was vague as to dates, chronology, and relationship of some discriminatory events to other identifiable events, he testified concerning several incidents of racial harassment.
Petitioner testified that sometime in 1996, a Caucasian male employee named Frank Gowen spotted another Caucasian male and an African-American male wrestling in one of Respondent's parking lots. Gowen asked aloud, in Petitioner's presence, "What does that Nigger think he's doing?" No other witness corroborated that this comment was made. Petitioner admitted that he never reported the comment to anyone in management until after he was terminated in 1999. Respondent's management employees, Billy Davis and Ronnie Rogers, Human Resources Officer, were credible in their testimony that they never knew of this incident until after Petitioner's termination.
Petitioner testified that on another unspecified date, Gowen asked a Caucasian female employee, also in Petitioner's presence, what "Pontiac" meant, and then answered his own question as, "Pontiac means 'Poor Old Nigger Thinks It's A Cadillac.'" At hearing, the female employee denied this event happened. No other witness corroborated Petitioner's account of this incident. No other witness even seemed to understand the so-called joke or anagram for Pontiac. Petitioner admitted that
he never reported this comment to any superior until after he was terminated in 1999. Respondent's management employees were credible that they never knew of this specific incident until after Petitioner's termination.
There is sufficient evidence to corroborate Petitioner's account that in approximately January 1998, he had a knife in his hand, opening a feed sack, with the knife's point aimed at a Caucasian male employee, without any intended threat, and at that point, Gowen said to the other employee, something like, "You got to watch them Niggers. They'll cut you." Petitioner admitted that he never reported this incident to any superior until after he was terminated in 1999.
Petitioner also testified credibly that on the same day as the "cutting" comment, Frank Gowen prevented him from sitting in the front of a flatbed dump truck with Gowen and another Caucasian male, Donovan Rewis, while saying something to the effect of "That's right. Let the Nigger ride in the back of the truck." Mr. Rewis corroborated that this discriminatory comment and event, in fact, occurred.
On the same day as the "cutting" and "back of the truck" comments/events occurred, another male African-American employee named Clarence McClendon approached Billy Davis. McClendon told Davis that a bad situation was developing between Petitioner and Gowen. Exactly what McClendon told Davis is
unclear, but it appears that Davis was at least made aware that the term "Nigger" had been repeatedly used by Gowen to Petitioner and was further made aware that the "cutting" and "back of the truck" incidents had occurred on the same day.
Upon learning of the "cutting" and "back of the truck" incidents from McClendon, Davis immediately asked Petitioner to come to his office. Davis asked Petitioner to explain what had happened involving Gowen.
Petitioner did not specifically describe the "wrestling" comment or the "Pontiac" comment, and it is unclear whether Petitioner described either the "cutting" or "back of the truck" incidents in the detail provided by the foregoing Findings of Fact, but Petitioner did explain to Davis that Gowen had repeatedly used the word "Nigger" in his presence and about himself.
Davis then told Petitioner that Gowen's behavior was unacceptable behavior for a White Oak Plantation employee and that Gowen's comments and behavior would subject Gowen to discipline, which discipline could go as far as Gowen's termination. Petitioner then told Davis that he did not want Gowen to be punished or to get in any trouble for making the comments. Petitioner requested that Gowen simply be asked to make a sincere apology to him and to promise that he would never again make such comments.
Davis specifically told Petitioner that he could inform Respondent's Human Resources Office of the incidents. Petitioner, however, requested that Human Resources not be involved and that, instead, the matter be handled by Davis.
Petitioner testified that he simultaneously met with Davis and Rose Harley, an owner-manager, about the Gowen matter. It is important to Petitioner that all concerned know that Harley stated to him that the Gowen situation should have been brought to her attention sooner and that he would receive a record of the comments and management's response. Davis recalls only meeting with Petitioner alone and then meeting alone with Rose Harley to further discuss the situation. Petitioner is credible that at some point Harley made the statement to him which he related, but Davis is just as credible that Petitioner asked him not to involve the Human Resources Office.
After meeting with Petitioner, Davis and Harley met with Gowen to discuss the matter with him. Davis told Gowen that he and White Oak Plantation were disappointed in his behavior. He instructed Gowen to apologize to Petitioner.
Gowen, in fact, apologized to Petitioner.
After the apology, Davis met with Petitioner again, and Petitioner told Davis that he was satisfied with the apology that he had received from Gowen. At this meeting, Davis instructed Petitioner to inform him if any further incidents
occurred. He further told Petitioner that if Petitioner did not feel comfortable talking to him, Billy Davis, Petitioner could notify any other supervisor, which presumably would include
Ms. Harley, or the Human Resources Officer, Ronnie Rogers.
Although Petitioner claimed at hearing that he had told Davis by phone about Gowen's earlier comments, Davis denied that any such phone call took place, and no witness corroborated Petitioner's timeline. What is undisputed is that in 1998, no more than one day elapsed from the time McClendon notified Davis of Gowen's comments until the time the incident was resolved to Petitioner's apparent satisfaction.
Davis continued to check with Petitioner, informally, in passing, on a regular basis, to ensure that Petitioner was not having any more problems with Gowen. Petitioner never indicated to Davis that any further discrimination problems existed.
Mike Brown was a Caucasian male employee of Respondent who left Respondent's employ in 1999. How long he was a co- employee with Petitioner is not in evidence.
While they were both employees of Respondent, Brown and Petitioner fell into a habit of addressing each other by nicknames. Brown referred to Petitioner as "Buckwheat." Petitioner referred to Brown as "Cracker," "Vidalia," "Onion Head,"1 and "Grand Wizard."
Various Caucasian employees considered Petitioner and Brown to be only "cutting the fool" or "joking around" when they addressed each other this way.
Other employees, including Brown's girlfriend, Missy Springer, also referred to Brown as "Vidalia."
Apparently, Petitioner was always aware that the term, "Grand Wizard," inferred that Brown held that rank in the Ku Klux Klan, and Petitioner saw nothing wrong in addressing Brown that way, because Brown had asked Petitioner to call him "Grand Wizard."
However, Petitioner initially did not think "Buckwheat" had any racial connotation or derogatory intent. Petitioner testified that he initially took the term "Buckwheat" to refer to the African-American character of the same name in "The Little Rascals" series of films; to be a joking nickname; and to be a harmless "stereotype."2
At some point, Petitioner contacted the National Organization for the Advancement of Colored People (NAACP) and was informed by that organization that references to the character "Buckwheat" in "The Little Rascals" series constituted disparagement of the Negro race, based on a stereotypical, uneducated, ragamuffin, Negro child who ate watermelon and behaved like a wild animal. The record does not reveal when Petitioner consulted the NAACP or whether the insult was
explained to him in this way before or after Brown's leaving Respondent's employ. However, it is clear that Petitioner did not go to Davis or Rogers about the situation with Brown at any time.
Once again, Petitioner's situation was reported to Davis by Clarence McClendon, after Brown left Respondent's employ.
After Brown ceased to be one of Respondent's employees, Brown continued to come on Respondent's premises to provide transportation for his girlfriend, Missy Springer. During this period of time, the trading of offensive nicknames between Petitioner and Brown continued without any complaint from Petitioner to management.
Over one year after the disciplining of Gowen, and after Brown was no longer Respondent's employee, McClendon reported to Davis that he had observed Brown call Petitioner "Buckwheat" and that Petitioner had called Brown "Vidalia" and "Cracker."
At hearing, Petitioner claimed, without any corroborating testimony, that Davis was aware of Brown's racial disparagement of him at some time while Brown was still employed by Respondent, because Davis had been present in the break room once when Brown had telephoned, and when Petitioner answered the break room phone, Brown had addressed Petitioner, over the
phone, as "Buckwheat." Petitioner testified that other employees in the break room laughed and Missy Springer told Davis that the caller had to be "Vidalia," a/k/a Mike Brown, because Brown was the only one who called Petitioner "Buckwheat." Davis categorically denied being present when any such event occurred, if it occurred. Based on the evidence as a whole, Davis is the more credible witness on this aspect of the case.
Petitioner did not ever affirmatively approach Davis for redress of the nasty nickname situation with Brown. However, immediately after being informed by McClendon, Davis approached Petitioner about McClendon's allegations involving Brown. He asked if Petitioner wanted him to ban Brown from Respondent's premises. Petitioner agreed that was what he wanted done.
In this discussion with Petitioner, Davis suggested that Ronnie Rogers, Human Resources Officer, be contacted regarding Brown's behavior, because Brown now was a member of the public. Petitioner agreed that Human Resources should be consulted.
A meeting was held by Davis and Rogers with Petitioner. During this meeting, Rogers reviewed White Oak Plantation's Equal Employment Opportunity (EEO) statement with Petitioner.
During Petitioner's employment, Respondent's EEO anti- discrimination and anti-sexual harassment statement had consistently been displayed at the time clocks of the East Stable, where Petitioner was assigned, and in the employee cafeteria, where employees daily received a free lunch. This statement prohibited racial disparagement or harassment. It set out to whom reports of such activities should be made, which included any supervisor. It stated that Respondent would not retaliate against anyone who made a good faith report of discrimination, even if that person turned out to be wrong. It did not promise confidentiality.
In their meeting concerning banning Brown from the premises, Petitioner told Rogers that he was familiar with the EEO statement.
Rogers agreed with Davis and Petitioner that Brown should be banned from the premises.
Davis told Petitioner sometime during this period that if he experienced any repercussions as a result of Brown being barred from the property, Petitioner was to inform Davis immediately. Petitioner's testimony suggested that he now considers this statement to have been a threat by Davis or to demonstrate Davis's reluctance to ban Brown from Respondent's property, but Davis is more convincing that if he said anything
close to this, it related to what Missy Springer might do or say.
Rogers told Petitioner that if Petitioner experienced any future problems, whether those problems were related to Brown or not, Petitioner should immediately contact either his supervisor, Davis; another supervisor; or Rogers, himself, depending upon with whom Petitioner felt more comfortable.
After meeting with Petitioner, Davis and Rogers immediately sought out Missy Springer, Brown's girlfriend whom he was transporting to and from work. They met alone with Springer and told her that Brown would no longer be allowed on Respondent's premises. They directed Springer to telephone Brown to tell him that. In the presence of Rogers and Davis, Springer telephoned Brown and instructed Brown that he was banned from coming onto White Oak Plantation property.
Rogers then contacted Respondent's Head of Security and instructed him to post notices at both gates stating that Brown would no longer be allowed on White Oak Plantation property. White Oak Plantation maintains security guards on a twenty-four hour basis, seven days per week, and they were instructed not to allow Brown onto the property again.
Since the date that the notices were posted and Brown was notified that he was barred from White Oak Plantation property, Brown has not returned.
After the situation with Brown had been investigated and apparently resolved in late February 1999, Davis continued to check with Petitioner informally to inquire whether Petitioner was having any further problems.
Petitioner was credible that he did, in fact, receive some unpleasant comments from other employees as a result of Rogers's and Davis's banning of Brown from the White Oak Plantation property. However, Petitioner did not report any such problems to Davis. Instead, he took a vacation for two weeks.
After Petitioner returned to work, on March 19, 1999, Davis was shoeing a horse at the Forge, a small stabling facility about 100 yards from Respondent's East Stable. From the Forge, Davis had a direct line of sight to the East Stable.
From the Forge, Davis witnessed two individuals running around and throwing water at each other. Because they were in the dark hallway of the stable, because of the distance, and because Davis was looking from lightness into darkness, Davis could not make out exactly who they were, but he could clearly see the conduct in which they were engaged.
Respondent White Oak Plantation had gone out of business by the date of hearing. However, at all times material, White Oak Plantation was world renowned for its thoroughbred horse breeding program. It housed many mares
valued in excess of $1,000,000.00 and foals with insurance values up to, and in excess of, $1,000,000.00. What Davis witnessed on March 19, 1999, was inconsistent with the training and instructions provided to employees working around such valuable blood stock.
After contacting another employee to secure the horse in the Forge, Davis walked to the East Stable to investigate the commotion.
Upon arriving at the East Stable, Davis discovered water in the hallway, disinfecting powder (lime) covering the black asphalt hallway, and a broken director's chair, normally reserved for guests, in the vicinity of a stall housing a young thoroughbred mare and her three-day-old foal.
Davis approached the employees who were working at the East Stable at that time. They were Petitioner; Jason Martin, a minor Caucasian male; Clarence McClendon; and Billy Farmer, an adult Caucasian male. Davis noticed that Petitioner and Martin were both soaked with water, while McClendon and Farmer were
dry.
Davis asked Petitioner and Martin separately, but
within earshot of each other, what had been going on, and both said they had been working.
Davis then asked Farmer and McClendon, individually, what had occurred involving the water, lime, and broken chair.
Both Farmer and McClendon avoided the question and responded that they did not want to get involved in the situation. Davis again asked Farmer and McClendon what had happened. Farmer and McClendon replied that they were working and that Davis should ask Martin and Petitioner what had happened. Davis asked Farmer and McClendon a third time what had occurred at the East Stable. Each of them replied that while they were working, Martin and Petitioner were horsing around.
Davis then asked both Petitioner and Martin two or three times what had occurred, and each time Petitioner and Martin claimed that they had been working.
Ultimately, Martin confessed that he had been involved in horse play and the commotion had been his fault. Davis immediately terminated Martin. Petitioner began to walk away from the situation, but Davis called after him something to the effect of "No, you can't let him take the fall for you. You are out of here, too." Petitioner protested that since Martin had confessed the incident was his fault, he, Petitioner, should not be terminated as well.
The mare and three-day-old foal that were in the East Stable when Petitioner and Martin were horseplaying had a combined insurance value of between $750,000.00 and $800,000.00. The foal was only the mare's second or third birthing, and as a youngish mother she could be presumed to be nervous. Due to the
age of the foal and the highly temperamental nature of young thoroughbred mares, the conduct in which Petitioner and Martin were engaged was very dangerous to the well-being of this mare and her three-day-old foal. It was conceivable that the mare could have been spooked and stepped on the foal, injuring it. Fortunately, that did not happen.
Davis had trained all of his stable employees, including Martin and Petitioner, in the correct way to act around thoroughbred horses. Even though their horseplay was not actually in the stall with the new mother and foal, Davis considered Petitioner's and Martin's conduct with the water, lime, and broken chair to be inconsistent with the training provided. He accordingly terminated both Martin, the Caucasian boy, and Petitioner, the African-American man, because both had been involved in the event.
Either orally or in paperwork, both Petitioner and Martin were terminated for engaging in horse play, for creating an unsafe work environment for themselves and their co-workers, and/or for reckless misconduct around the blood stock or thoroughbred horses.
Petitioner pointed out that some or all of these reasons were not specifically listed as major offenses, subjecting an employee to termination, in Respondent's personnel manual at the time of his termination. That fact might be
relevant in a case of unlawful termination pursuant to a contract of employment or collective bargaining agreement, but it is not material to the resolution of this case under Chapter 760, Florida Statutes. The manual does not purport to be exhaustive of the reasons an employee could be terminated. What is material here is that Petitioner agrees that he and Martin were terminated for the same reason or reasons, however phrased. Petitioner feels that his termination was unfair because Martin essentially took the blame for them both, but Davis's reason for terminating both employees may be summed up by the old adage, "It takes two to make a fight."
On the day of his termination, Petitioner told Davis that he and Martin were fighting, and that he was defending himself, but he did not say anything to Davis about Martin making any racial comments towards him.
During Mr. Davis's contemporaneous investigation of the incident in the East Stable, neither McClendon nor Farmer told him that Martin had used any racial terms while engaged in horse play with Petitioner.
After Petitioner was terminated, he appealed to Respondent's Human Resources Officer, Ronnie Rogers, so Rogers conducted his own investigation of the facts surrounding Davis's terminations of Petitioner and Martin. In connection with that investigation, Rogers interviewed Farmer, McClendon, and
Petitioner. McClendon told Rogers that on the day of Petitioner's and Martin's terminations, he witnessed Petitioner and Martin running, playing, and throwing water on each other. McClendon further stated that he saw either Martin or Petitioner push the other individual into the director's chair, breaking it. Farmer told Rogers that on the day of Petitioner's and Martin's terminations, he had witnessed Petitioner and Martin running around and playing for 10 to 15 minutes. Rogers concluded that Davis had made a proper decision in terminating both Martin and Petitioner.
The Monday following Petitioner's termination, Petitioner telephoned Rogers to inquire whether he was still terminated. During the course of this conversation, Petitioner admitted to Rogers that he and Martin were horse playing in the stables where the thoroughbred horses were housed. During this conversation, Petitioner did not say anything to Rogers about Martin or any other individual using any racial or inappropriate language on the date of Petitioner's termination.
Rogers and Davis met with Petitioner on March 24, 1999, five days after Petitioner was terminated. During this meeting, Petitioner reiterated what he had told Rogers, that he and Martin were playing around in the East Stable on the day of their terminations, but he also brought up the previous racial incidents involving Gowen and Brown and inquired whether Rogers
was aware of them. Rogers had not been aware of the incidents involving Gowen and asked Petitioner if he were satisfied with the way that all the previous incidents involving both Gowen and Brown had been handled. Petitioner indicated that he was satisfied with the manner in which the incidents involving Gowen and Brown had been handled.
Petitioner claimed at hearing that in the March 24, 1999, meeting, he related to Davis and Rogers that the March 19, 1999, altercation with Martin had been self-defense because he had been attacked by Martin and/or provoked by Martin's racist comments. Both Davis and Rogers credibly deny that Petitioner told them anything about racial comments by Martin. They also credibly deny that Farmer or McClendon reported any racial comments. They are less clear that Petitioner said nothing about self-defense or about Petitioner having to fight Martin, and I accept Petitioner's testimony only to the extent that he did claim both horseplay and self-defense as of March 24, 1999.
Neither Davis nor Rogers independently observed or was aware of any racially inappropriate conduct or comments.
At hearing, Petitioner testified that on March 19, 1999, the date of termination, Martin had called Petitioner "Buckwheat." Petitioner related that Martin had then stated that if Mike Brown were permitted to call Petitioner "Buckwheat," then he, Martin, should be allowed to call
Petitioner "Buckwheat," too, and that Petitioner told Martin that he could not because Petitioner now knew it to be racist language. Petitioner related that Martin then hosed Petitioner down, soaking Petitioner's clothes with water. Petitioner said he let this event pass, because it was hot. He then filled a pail of water and spilled some. He poured the remainder of the water in his pail into a wash stall. Martin ran away from Petitioner, thinking Petitioner was going to throw water on him, and said something to the effect of "Since you think you White and you want to be White, I'm going to take this lime and throw it on you and turn you White." Petitioner related that Martin was referring to the lime used to disinfect the stalls.
However, Petitioner did not testify that Martin picked up any lime. Rather, Petitioner testified that Petitioner picked up a bucket of water and threw it on Martin. Petitioner related that Martin reacted to being doused by Petitioner by getting Petitioner in a headlock and punching and kicking him. A fight ensued, in close vicinity to the young mare and her three-day- old foal, but not within their stall. Petitioner testified that the director's chair was broken when Petitioner threw Martin into it. The area was also flooded with water.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause,
pursuant to Chapter 760, Part I, and Section 120.57(1), Florida Statutes.
Respondent asserts that no evidence should have been permitted with regard to Petitioner's termination March 19-24, 1999, because of an inadequate Petition for Relief and Notice of Hearing (see the Preliminary Statement and Findings of Fact 5 through 8).
Many cases support an argument that new or different types of discrimination cannot be alleged in the Petition for Relief.3 For example, if the Charge only alleges racial discrimination, then discrimination on the basis of sex and marital status cannot be added into the Petition because this forum has no jurisdiction to consider those "after-thoughts." The Commission must first investigate the allegations of the Charge, and only when the Commission has entered its "proposed final agency action" by way of a "Determination" of the contents of the Charge, may a Petition for Relief attacking that proposed final agency action be filed.4
Likewise, there are many cases which hold that, regardless of other extra-jurisdictional issues listed in the Charge and/or the Petition, only discrimination as addressed in Chapter 760, Florida Statutes, may be considered either by the Commission, in the first place, or ultimately by the Division of Administrative Hearings. For instance, claims arising under the
Americans with Disabilities Act may not be disposed of in this forum, even though case law under that federal statute may be instructive for interpreting Chapter 760, Florida Statutes.
Likewise, various whistle-blower statutes may not be decided by the Commission or the Division because only a Charge/Petition based on "retaliation," as addressed by Chapter 760, Florida Statutes, may be considered in these forums.
Finally, libel and slander, breach of an employment contract, and other causes of action which are the exclusive jurisdiction of the Circuit Courts of this State, may not be litigated before the Commission or the Division.
However, Respondent has not shown any case law which clearly prohibits the trial of an issue of termination under the situation we have here. Petitioner clearly raised the issue of termination in his Charge of Discrimination, and, as inarticulate as it was, the Petition seems to continue that complaint. In the instant type of "notice" pleading case, precision of pleading is not a controlling factor. Finally, Respondent has shown no compelling reason to preclude consideration of the termination issue and evidence related thereto, since there was no surprise herein. The termination evidence has therefore been admitted and the termination issue will be considered.
In Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), the Florida Supreme Court analyzed the types of claims under the Florida Civil Rights Act as follows:
The United States Supreme Court set forth in procedure essential for establishing such claims in McDonnell Douglas Corp v. Green, 41 U.S. 792 (3 S.Ct. 1817, 36 L.Ed. 2d 668
(1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reasons for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reasons for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or
she has been the victim of intentional discrimination. (Citations omitted.)
Herein, Petitioner has failed to establish a prima facie case of racial harassment, via the Gowen and Brown incidents. As a threshold issue, Petitioner failed to show that the alleged harassment was sufficiently severe or pervasive to alter Petitioner's terms or conditions of employment and create a discriminatorily abusive working environment. Harris v. Forklift Systems, Inc., 510 U. S. 17, 114 S. Ct. 367 (1993); Miller v. Kenworth of Dothan, Inc., 277 F. 3d 1269 (11th Cir. 2002).
It is not fairly debatable whether Gowen's and Brown's remarks were racially motivated or intended only to be joking and not derogatory. Their remarks were clearly and reprehensibly racist, unfeeling, discriminatory, and just plain wrong. However, two remarks (or even four remarks) over the space of two years by Gowen cannot be legitimately categorized as "pervasive." Brown's remarks were also clearly and reprehensively racist, unfeeling, discriminatory, and just plain wrong, but Brown's remarks also do not appear to have been pervasive of the workplace.
In Harris, supra, it was held that to be actionable under Title VII, as an "abusive work environment," the conduct need not seriously affect the employee's psychological well-
being or lead the employee to suffer injury but that the standard established in Meritor Savings Bank, FSB v. Vinson, 477 US 57, 106 S.Ct. 2399, 91 L.Ed 2d 49 (1986) requires an
objectively hostile or abusive environment as well as the victim's subjective perception that the environment is abusive, and whether an environment is sufficiently hostile or abusive to be actionable requires consideration of all the circumstances, not only one factor. The fact that Petitioner did not have the perception of Brown's remarks as racially derogatory for a long period of time and did not report them to Stable Manager Davis or Human Resource Officer Rogers re-enforces the conclusion that those remarks were not pervasive of the workplace or prohibitive of Petitioner's well-being.
Assuming arguendo, but not ruling, that a prima facie
case with regard to the Gowen and Brown comments/incidents was presented, a Respondent Employer cannot be held liable for an unlawful employment act where it has taken prompt and appropriate remedial action once it knows, or reasonably should have known, of the alleged harassment. Miller v. Kenworth of Dothan, Inc., supra.
Here, Petitioner never reported either Gowen or Brown to his employer; another African-American employee reported that Petitioner was being harassed.
Interestingly, it appears that the tipster, McClendon, did not report that he, McClendon, was being harassed, only that Petitioner was. This suggests, obliquely, at least, that some component beyond racism was motivating Gowen and Brown against Petitioner, personally.
More to the point, within a single day of McClendon's report, Davis had threatened Gowen with termination, forcing Gowen into an apology to Petitioner, and Petitioner had pronounced himself satisfied with that result. Also, within a reasonably short time span from McClendon's report to Davis of the "Vidalia/Cracker-Buckwheat" interchanges between Brown and Petitioner, Davis had ferreted out the "Grand Wizard" and other comments, involved Human Resources in the situation, and Brown had been banned from Respondent's property. Petitioner also pronounced himself satisfied with that result. Respondent acted as fast as it could and went as far as requested as soon as management was made aware of a discriminatory situation.
Respondent is not guilty of an unlawful employment practice in relation to Gowen's and Brown's astoundingly bad behavior.
Petitioner established that he was a member of a protected class (African-American) and that he was terminated, but he presented no evidence that would establish that Respondent's reason for terminating him was racial in origin.
The only nexus to race in the events of March 19, 1999, is that after the fact, Petitioner claimed to have been defending himself against racist remarks and physical attack by a Caucasian employee. However, even by Petitioner's account, there is no evidence that Martin actually threw lime at him, and it appears that Petitioner had the last clear chance to avoid an altercation with Martin. By his own account, Petitioner, an adult, escalated the situation when he doused Martin, a minor, with water.
Petitioner also cannot claim that Respondent Employer treated any similarly situated employees outside his protected class more favorably than he was treated. Davis figured out that two employees, one Caucasian and one African-American, were endangering the Employer's blood stock, for whatever reason, and terminated the Caucasian. Then he fired the African-American, too.
Both Davis and Rogers credibly denied that Petitioner told them during their subsequent investigation, March 19-24, 1999, of any racial motivation for the fight.
A legitimate, nondiscriminatory reason for Petitioner's termination was articulated, and Petitioner has failed to show it to be pre-textual in nature. See, Holifield
v. Reno, 115 F. 3d 1555 (11th Cir. 1997); Isenbergh v. Knight- Ridder Newspaper Sales, Inc., 97 F. 3d 436 (11th Cir. 1996).
Respondent is not guilty of an unlawful employment practice in the termination of Petitioner.
Upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002.
ENDNOTES
1/ Vidalia onions are prominent Georgia products. Apparently, Gowen, Brown, and Petitioner were all domiciled in Georgia.
2/ It is clear from the remainder of Petitioner's testimony that he never understood that a stereotype can be derogatory in- and-of itself. The undersigned is satisfied that by his use of the word "stereotype," in the foregoing testimony, Petitioner intended to say "caricature," a term Petitioner did accurately use to show he felt a term was racially derogatory.
3/ Probable exceptions are a situation in which a retaliation claim occurs between the Charge and the Petition and a situation involving "pattern discrimination."
4/ Failure of the Commission to act in a timely manner presents a different procedural scenario which is not germane here.
COPIES FURNISHED:
William Mitchell Post Office Box 1543
Cairo, Georgia 31728
Timothy B. Strong, Esquire Amy H. Reisinger
Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089
Jacksonville, Florida 32203
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 29, 2003 | Agency Final Order | |
| Dec. 11, 2002 | Recommended Order | Racially motivated and derogatory remarks were proven but were not so pervasive as to establish a prima facie case of abusive work environment. Respondent employer not liable because it took prompt and appropriate remedial action once it knew of remarks. |
