vs.
Respondent.
) Case No. 03-0722
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Pensacola, Florida, on May 12, 2003. The appearances were as follows:
For Respondent: Erick M. Drlicka, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner was disparately treated because of his race when he was terminated from the Respondent's employment.
The Respondent operates a manufacturing plant in Escambia County, Florida, which makes nylon staple and no shock conductive fiber. The Petitioner was employed as a carpet operator in Respondent's carpet area until December 13, 2001. The Petitioner filed a charge of race and sex discrimination with the Florida Commission on Human Relations ("Commission") on August 30, 2002 and ultimately filed Petition for Relief with the Division of Administrative Hearings on February 28, 2003, concerning his claim of disparate treatment.
The cause came on for hearing as noticed at which time the Petitioner presented his own testimony. The Petitioner did not call any other witnesses nor did he submit any exhibits. The Respondent called four witnesses: Cathy Morris ("Morris"), Murray Hamilton ("Hamilton"), Julia Randolph ("Randolph"), and Mike Kimbro ("Kimbro"). The Respondent submitted into evidence exhibits one through twenty-one.
Upon conclusion of the proceedings the parties elected to transcribe the proceedings and to avail themselves of the opportunity to file proposed recommended orders. The Respondent timely filed a Proposed Recommended Order which has been considered in the rendition of this Recommended Order. All citations are to Florida Statutes (2002) unless otherwise indicated.
The Respondent operates a manufacturing plant in Escambia County, Florida, which produces nylon staple and no shock conductive fiber in a portion of the plant known as the carpet area.
The carpet area operates twenty-four hours a day, seven days a week. The carpet area is headed by a Team Leader.
Keith Chambers ("Chambers") was the Team Leader for the carpet area until November 1, 2001. Morris succeeded Chambers as the Team Leader. Underneath the Team Leader is the Carpet Team Resource Coordinator. Hamilton was the Carpet Team Resource Coordinator since May 2000.
There are four shifts in the carpet area: "A" Shift, "B" Shift, "C" Shift and "D" Shift. Each shift is twelve hours, starting at 6:00 a.m. and 6:00 p.m., respectively. The shifts rotate between nights and days, as well as weekdays and weekends.
Each shift has four teams. The teams are comprised of seven carpet operators. The primary responsibility of the carpet operators is to ensure there is no disruption in the manufacturing process. Each team has a team captain who is selected by his team to serve as team captain for six months. The team captain is responsible for tracking vacation, overtime, finding coverage when a team member calls in sick and capturing
time exceptions. They are the same grade level and pay scale as their team members and have no supervisory authority.
The carpet operators do not have to punch a time clock.
They are on an honor system with respect to the number of hours worked. If there is any deviation from the twelve-hour shift, the carpet operator is responsible for telling the team captain so that the team captain can record the deviation on a time sheet exception report. Carpet operators are entitled to one thirty-minute lunch break and two fifteen-minute breaks per shift.
The Petitioner worked as a carpet operator on team one of the "D" shift for approximately three years.
Kimbro was the Team Captain for team one of the "D" shift from March, 2001 to November 22, 2001. Randolph succeeded Kimbro as the Team Captain on November 22, 2001, and remained the Team Captain through the balance of the Petitioner's employment.
The Petitioner had been counseled about staying on his assignment and sleeping on the job on June 25, 1997,
June 16, 1998, and November 1, 1999.
On November 16, 2001, the Petitioner worked the 6:00
a.m. to 6:00 p.m. shift. He and a co-employee, Ray Grace ("Grace"), were seen by Chambers's, the Petitioner's former
supervisor, at a convenience store located away from the plant, less than two hours before the end of their shift.
Chambers notified Hamilton who in turn reported the incident to Morris. Morris asked to review the Petitioner's and Grace's badge records which would show when they left and came back to the plant over a period of time. Morris noticed that the Petitioner left the plant on other occasions besides November 16, 2001. One particular entry showed that the Petitioner left the plant for over an hour and seventeen minutes. Concerned over the latter entry, Morris ordered additional badge records which went further back in time to determine whether the latter entry was an isolated occurrence.
The additional badge records showed that there was a definite, long-term pattern of the Petitioner leaving the plant for extended periods of time during his shift. In particular, the badge records showed the Petitioner left the plant thirty- eight times for forty-five minutes to an hour at a time between January 8, 2001 and November 16, 2001. The badge records also showed that the Petitioner left the plant thirty-five times for more than an hour at a time between January 8, 2001 and November 16, 2001. The badge records showed that on eleven
shifts during this time period, the Petitioner left the plant at least two times for more than forty-five minutes at a time. The total amount of time the Petitioner was absent from the plant,
for more than forty-five minutes, equaled approximately eighty- seven hours and forty-five minutes between January 8, 2001 and November 16, 2001. The badge records also showed that the overwhelmingly majority of the time the Petitioner left the plant was on a night or week-end shift, when his supervisors, Hamilton and Morris, were not in the plant.
After reviewing the badge records, Morris met with the Petitioner to discuss the severity of the matter and to determine whether Petitioner had an acceptable reason for leaving the plant as often and for as long as he did. The Petitioner was unable to provide any valid explanation for his actions. He did indicate that other employees did the same thing, but he would not give Morris the name of those employees. He also indicated that on several occasions he went to see his daughter in the hospital.
The Petitioner testified that it would take a minimum of two hours to travel to and from the hospital to see his daughter. A review of the Petitioner's badge records shows that the longest he left the plant, at any one time, was one hour and thirty-six minutes.
After meeting with the Petitioner, Morris pulled other employees' badge records to compare them to Petitioner's badge records. No other employee was remotely close to the Petitioner
as to the frequency and lengths of time of absence from the plant.
Based on the information gathered, Morris decided to terminate the Petitioner.
The Petitioner was terminated on December 13, 2001.
The Petitioner identified six individuals who he believed were similarly situated to him but were treated better. They included Mike Kimbro (a white male), Dion House (a black male), Terence Goldstein (a black male), Kevin Dykes (a white male), Andretta Harris (a black female), and Loretta Adams (a black female). However, the Petitioner was unable to show how these individuals were similarly situated to him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and of the parties to this proceeding. Section 120.57(1).
Petitioner alleges that Respondent treated him differently than white employees because of his race and gender when he was terminated on December 13, 2001, in violation of Section 760, and Title VII. Section 760 is patterned after Title VII and is to be construed using federal case law interpreting Title VII. Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994) and Florida Department
of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
The Petitioner has the burden of establishing that the Respondent's actions were motivated by a discriminatory purpose, either through direct evidence or circumstantial evidence using the McDonnell Douglas standard of proof. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 207 (1981); St. Mary's Honor Center v. Hicks, 509 U.S.
502, 113 S. Ct. 2742, 2747, 125 L. Ed. 407, 416 (1993).
Petitioner has not presented any direct evidence of discrimination. Accordingly, Petitioner's claim is analyzed using the McDonnell Douglas standard. Pursuant to McDonnell Douglas, the Petitioner has the burden of establishing a prima
facie case of race discrimination. If a prima facie case is demonstrated, then the Respondent must articulate a legitimate, non-discriminatory reason for its actions. Once the Respondent establishes a legitimate, non-discriminatory reason, then the Petitioner must show that the proffered reason is pretextual.
The ultimate burden of persuasion remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed.2d 207 (1981); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
2747, 125 L. Ed.2d 407, 416 (1993).
In order to establish a prima facie case, the Petitioner must prove by a preponderance of the evidence that:
(1) he belongs to a protected class, (2) he was subjected to an adverse employment action, (3) the Respondent treated similarly- situated employees, outside the protected class, more favorably, and (4) he was qualified to do the job. Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1310 (11th Cir. 1998).
The Petitioner has failed to establish a prima facie case in several respects. First, he has failed to establish that the Respondent treated similarly-situated employees outside the protected class more favorably. The Petitioner identified six individuals who he believed were similarly-situated to him. However, not all the individuals listed by the Petitioner were outside the protective class. More specifically, four out of the six were of the same race and/or gender as the Petitioner.
Even if they were all outside the protected class, the Petitioner failed to demonstrate that the other employees were similarly-situated to the Petitioner and that they were treated more favorably than he. The only evidence submitted by the Petitioner that the six employees were similarly-situated and treated more favorably is his subjective belief. The Petitioner's subjective beliefs are not sufficient to meet the Petitioner's burden. Earley v. Champion International Corp.,
907 F.2d 1077 (11th Cir. 1990) and William v. Hager Hinge Company, 916 F.Supp. 1163 (M.D. Ala 1995).
In addition, the record evidence established that the Petitioner's subjective belief that he was treated less favorably than similarly-situated persons outside the protected class was simply unfounded. The Petitioner left the plant for more than forty-five minutes during his shift seventy times between January 8, 2001 and November 16, 2001 for a total of eighty-seven hours. No other employee left the plant as frequently and for such lengths of time as the Petitioner.
Even if the Petitioner established a prima facie case, the Respondent has articulated a legitimate, non-discriminatory reason for terminating the Petitioner. The reason for his termination was time falsification. More specifically, the pattern of leaving the plant as often and as long as the Petitioner did not only violate company policy, it also resulted in the Petitioner being paid for almost two weeks of time not actually spent working.
The Petitioner has failed to come forward with any evidence showing that the Respondent's articulated reason is pre-textural. The Petitioner admits that he left the plant while "still on the clock" on the dates and times indicated on the badge records. He also admits that this was the reason for his termination. When asked why he believed he was terminated
because of his race, the Petitioner proffered no explanation other than "I just felt like I was just treated different." Finally, the evidence shows that the Petitioner was not treated any differently than persons outside his class since no other employee committed a remotely comparable offense.
Finally, even if the Petitioner had established a claim of discrimination, he failed to establish his claim for damages. The Petitioner did not present any evidence as to the amount of damages he is claiming.
Having considered 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, therefore,
That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.
DONE AND ENTERED this 26th day of August, 2003, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2003.
Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
