STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE DAVIS, III, )

)

Petitioner, )

)

vs. ) Case No. 02-4217

)

PITNEY BOWES MANAGEMENT )

SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on January 14, 2003.

APPEARANCES

For Petitioner: Willie Davis, III pro se

1263 Northwest 57th Street Miami, Florida 33142

For Respondent: Andrew R. Gold

Director, Human Resources Legal Counsel Pitney Bowes Inc.

1 Elmcroft Road, MC 6339 Stamford, Connecticut 06926

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner in employment on the basis of race, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Charge of Discrimination filed July 21, 2000, Petitioner alleged that Respondent terminated him on May 21, 1999, as a Customer Service/Mail Handler, claiming the termination was due to tardiness. Petitioner alleged that he is black and "non- blacks were walking off the job without authorization, no shows as well as tardy, [and t]he non-blacks were never terminated nor disciplined for their actions."

By Determination: No Cause dated September 23, 2002, the Florida Commission on Human Relations found no reasonable cause to believe that an unlawful employment practice had occurred.

By an undated Petition for Relief that bears no filing information, Petitioner alleged that Respondent committed an act of discrimination against him, as detailed in an unattached and unidentified "deposition."

At the hearing, Petitioner called two witnesses and offered into evidence ten exhibits--Petitioner Exhibits 1-10--which were all admitted. Respondent called one witness and offered into evidence five exhibits--Respondent Exhibits 1a, 1b, and 2-4-- which were all admitted except for Respondent Exhibit 1a.

The parties did not order a transcript. They filed proposed findings of fact on or before January 23, 2003.

FINDINGS OF FACT

1. Respondent supplies onsite services to manage mailrooms, copy centers, and other backoffice administrative functions. Respondent supplies these services to a wide range of businesses, including, in Hialeah, Bank of America, formerly known as NationsBank.

2. Respondent hired Petitioner, who is black, on

   
   

   November 28, 1998, as a Site Representative and assigned him to Bank of America. Working the 3:00 a.m. to 8:00 a.m. shift, Petitioner sorted the mail of Bank of America. He was responsible for delivering mail to the dock by 5:30 a.m., so trucks could then pick up and disburse the mail. As Petitioner described the work, it was time-pressured.

3. Initially, Petitioner's immediate supervisor was Marisela Veit. When hired, Petitioner explained to her that he had transportation problems, and she agreed to try to accommodate him as best she could. In March 1999, Enivaldo Alfonso replaced Ms. Veit as Petitioner's immediate supervisor, and he was less willing to accommodate Petitioner's transportation problems.

4. Mr. Alfonso quickly placed Petitioner on notice of

   
   

   Mr. Alfonso's expectations. After two adverse Employee Problem Discussions in February, which detailed Petitioner's excessive rate of tardiness and absence, on March 5, 1999, Mr. Alfonso

   provided Petitioner with a Performance Review, which assigned him an "exceeds standards" in quality of work and quantity of work, a "meets standards" in knowledge of job and customer satisfaction, and a "below standards" in attendance and punctuality.

5. According to the March 5 Performance Review, for the three-month period covered by the review, Petitioner had been absent four times and late ten times. The form states that, over a one-year period, an employee is below attendance standards with more than six absences and below punctuality with over eight tardies. Under areas for improvement, the review states: "Willie has a history of tardiness and absenteeism. While this has improved significantly, he must continue this upward trend in order for himself and the shift he works in to be successful."

6. On March 18, 1999, Mr. Alfonso issued Petitioner an Employee Problem Discussion, which states:

   Details of Problem. Today, March 18th, Willie Davis did not show up for work and did not call in. He called the office later that day to explain his situation. Although Willie has commitments outside of PBMS, he is expected to conform to rules and regulations concerning all aspects of employment including absenteeism. This is his fifth unscheduled absence to date.

   Also, the dress code that has been implemented in Mail Services must be followed and will be enforced.

   Action to be Taken. Willie's absenteeism and conformance to requirements will continue to be monitored and, if not corrected, may lead to disciplinary action up to and including termination.

   
   

7. On May 20, 1999, Mr. Alfonso issued Petitioner another Employee Problem Discussion, which states:

   Details of Problem. Willie continues to be habitually late (Ex: May 18th--20 minutes late, May 19th--25 minutes late, May 20th--

   10 minutes late), yet records his scheduled, not actual, start time on his time register.

   . . . This is falsification of his time record, which is a terminable offense. Willie has been told repeatedly that the telephone is to be used sparingly for quick, necessary calls and emergencies and not to be used for long non-PBMS related conversations. Even though this communication has been clear and consistent, Willie continues to ignore this direction and insists on using the phone to his liking. This is a misuse of company time, which is a terminable offense. This behavior is insubordinate, interferes with the processing of mail and is disruptive and unjust to other employees.

   
   

   Action to be Taken. Willie's tardiness, absences and conduct in respect to failing to follow directions has resulted in his immediate termination.

   
   

8. Mr. Alfonso worked with Petitioner and his excessive rate of tardiness and absence almost three months before terminating him. Petitioner had ample opportunity to comply with the reasonable demands imposed upon him by his employer.

9. Petitioner supports his claim of discrimination with two factual arguments. First, Petitioner claims that Mr. Alfonso

   dishonored the agreement into which Petitioner and Ms. Veit had entered concerning tardiness. Various problems exist with this claim. Petitioner did not establish that such an arrangement extended to absences. Petitioner did not establish that

   Ms. Veit's accommodation of Petitioner's occasional tardiness necessarily bound Mr. Alfonso, who gave Petitioner ample notice that he would not tolerate Petitioner's rate of tardiness and absence. Even Petitioner does not claim that his arrangement with Ms. Veit allowed him to fail to appear at work and not even call in to notify his supervisor. By recording his scheduled start time, even when he was late, Petitioner seems either to have been claiming pay for time not worked or avoiding detection of tardiness--even though, supposedly, he was entitled to be tardy. In no way was Mr. Alfonso, and Petitioner's coworkers, required to accommodate Petitioner's excessive rate of tardiness and absence, so termination for these job deficiencies does not support Petitioner's claim of unlawful discrimination.

10. Second, Petitioner claims that Mr. Alfonso unlawfully discriminated against blacks and in favor of Hispanics. In support of this claim, Petitioner cites Mr. Alfonso's treatment of one of Petitioner's coworkers, Armando Rodriguez. Hired at the same time as was Petitioner, Mr. Rodriguez received a Performance Review on the same day that Petitioner received his review. Mr. Rodriguez's Performance Review found his

    substantive work of a lesser quality than the work performed by Petitioner, but his attendance and punctuality better than the attendance and punctuality of Petitioner. Mr. Alfonso gave

    Mr. Rodriguez some time to work out his problems, and, when he failed to do so, Mr. Alfonso terminated him on June 30, 1999. Mr. Alfonso's treatment of Mr. Rodriguez does not support Petitioner's claim of unlawful discrimination.

11. Regardless of the race of the person who replaced Petitioner, Respondent has produced a legitimate business reason for the termination of Petitioner, who has not proved that the business reason is pretextual.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

13. Section 760.10(1)(a) provides that an employer commits an unlawful employment practice by discharging an employee because of his race.

14. Petitioner has the burden of proof in this case. Even assuming that Respondent replaced him with a nonblack, Petitioner has failed to show that the reasons cited for his discharge--excessive tardiness and absence--were pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973). Accordingly, Petitioner has failed to prove that he has been the victim of an unlawful employment practice within the meaning of Section 760.10(1)(a)

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of February, 2003, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 17th day of February, 2003.

COPIES FURNISHED:

Andrew R. Gold

Director, Human Resources Legal Counsel Pitney Bowes Inc.

1 Elmcroft Road, MC 6339 Stamford, Connecticut 06926

Karen Brown

Pitney Bowes Management

135 West Central Boulevard Suite 840

Orlando, Florida 32801

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

Willie Davis, III

1263 Northwest 57th Street Miami, Florida 33142

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-004217

Orders for Case No: 02-004217